
Class 



Book 



a ca 



ELEMENTS 



OF 



POLITICAL SCIENCE 



\/ 



By JOHN CRAIG, Esq. 



IN THREE VOLUMES. 



VOL. I. 




EDINBURGH j 

Printed by James Ballantyne and Co. 

FOR WILLIAM BLACKWOOD, 64, SOUTH-BRIDGE STREET, 

EDINBURGH ; 

AND T. CADELL AND W. DAVIES, STRAND, LONDON. 

1814. 



INTRODUCTION. 



In examining the political institutions of 
society, the first circumstance that claims 
our attention is the authority which we see 
exercised by a few of the citizens over the 
rest of the community. To ascertain the 
nature of the rights vested in government, 
the limits within which obedience is the 
duty of the people, and the description of 
persons to whom political authority ought 
to be entrusted, will, accordingly, under the 
title of the Constitution of Government, form 
the First General Division of the following 
Treatise. 

In return for the authority entrusted to 
government, and to compensate the sacri- 
fice of individual opinions, wishes, and in- 



yiii INTRODUCTION. 

(rate the doctrines of this book by a criti- 
cal examination of various constitutions of 
government and systems of law (however 
valuable, if executed with intelligence and 
impartiality) must be declined, as a task far 
beyond my abilities and me^ns of inform- 
ation. 

In treating of the Duties of Government, I 
have, in like manner, confined my attention 
chiefly to the general doctrines connected 
with this branch of the subject, without en- 
deavouring to enumerate or examine the 
complicated regulations, laws, and public 
institutions, which ought to result from the 
principles to which the several investiga- 
tions may lead. 

But, with respect to the Revenues of Go- 
vernment, although the principles are so sim- 
ple as to require little illustration, their ap- 
plication is often difficult and abstruse. On 
this account, even at the hazard of occasion- 
al prolixity, I have entered into a much 
more minute and particular detail. 

In every part of the Treatise, I have been 



INTRODUCTION. IX 

more desirous to exhibit a just and con- 
nected view of the important science of po- 
litics, than to display erudition respecting 
old opinions, or ingenuity in defence of such 
as may be new. I have not, however, re- 
frained from supporting what I consider as 
the cause of truth, because some of my opi- 
nions may be destitute of the authority of 
venerable names, or opposed to prejudices 
excited by the late affairs of Europe. Such 
prejudices will gradually subside, and in 
the present state of literature, no conclu- 
sion which is just can long continue to be 
regarded as paradoxical,* 

Feb, 10th, 18U. 

* I trust no wish will be imputed to me of claiming as ori* 
ginal all, or indeed many, of those opinions for which I have 
neglected to quote authorities. Sometimes the author had 
escaped my memory, while the opinion remained fixed in my 
mind ; and, in as far as possible, I was desirous of avoiding 
the appearance of controversial writing. This last circum- 
stance will account for my referring very seldom to the works 
of recent authors. 



For the purpose of assisting in reference, and of 
exhibiting a general 'view of the Work, an Analy- 
tical Table of Contents is subjoined to the Third 
Volume. 



CONTENTS 

OF 

THE FIRST VOLUME. 



INTRODUCTION. 



PRELIMINARY ENQUIRY INTO THE PRINCIPLES OP 
MORAL APPROBATION. 

CHAPTER I. 

Page. 

Of the Principles of Moral Approbation, - - - • - 1 
Sect. I. Of the Sentiments excited in the Spectator by the 

apparent Motives of the Agent, r - . -. * « • * . 3 
Sect. II. Of the Sentiments excited in the Spectator by the 

direct Consequences of the Action, ------16 

Sect. III. Of the Sentiments excited in the Spectator by the 

indirect Consequences of the Action, ----- 32 

10 



XIV CONTENTS. 



CHAP. II. 



Of the Nature and Degree of Approbation bestowed on the 

several Virtues, ---.--.49 

Sect. I. Of the Personal Virtues, ------- ib. 

Sect. II. Of the Social Virtues, 63 



BOOK I. 

OF THE CONSTITUTION OF GOVERNMENT. 

CHAP. I. 

Of the Nature and Limits of the Rights of Government, 84? 
Sect. I. Of the Natural Rights of Man, - - - - - ib. 
Sect. II. Of the Divine Right of Government, - - - 94? 
Sect. III. Of the Right of Government from Compact, 99 
Sect. IV. Of the Right of Government from Utility, - 112 
Sect. V. Of the Rights of Man in Society, - - - - 134 

CHAP. II. 

Of the Distribution of Political Power, ----- 156 
Sect. I. Of the degree of Political Inequality that is justi- 
fied by its Utility, --«--**---- ib. 
Sect. II. Of permanent Political Inequalities founded on 

Merit, Riches, or Birth, - - 183 

Sect. III. Of the Representation of the People, - - 195 
Sect. IV. Of a Senate, ------»-- - 227 

Sect. V. Of the Executive Power, ------ 244? 



CONTENTS. XV 

BOOK II. 

OF THE DUTIES OF GOVERNMENT. 

Introduction, - - - -.-.271 

CHAP. I. 

Of the Administration of Civil Law, ------ 274, 

Sect. I. Of regular Systems of Law, ----- #. 

Sect. II. Of Decisions according to Equity, - - - 299 

Sect. III. Of Civil Statutes, 31$ 

CHAP. II. 

Of the Administration of Criminal Law, ----- 324 

Sect. I. Of the Right of Punishment, ----- %h. 

Sect. II. Of the Province of Juries in Criminal Trials, 365 

Sect. III. Of Criminal Statutes, 384 



PRELIMINARY ENQUIRY 



INTO THE 



PRINCIPLES OF MORALS. 



CHAPTER L 



Of the Principles of Moral Approbation and 
Disapprobation. 

When an action is performed in our presence, 
or circumstantially related to us, there are two 
aspects in which it may be viewed. It may be 
considered either in reference to that state of 
mind in the agent, from which it appears to have 
proceeded, or in reference to the consequences 
which seem likely to result from it. In other 
words, it may be regarded in connexion with its 
causes, or in connexion with its effects. Viewing 
it in the first of these lights, we pronounce it 
proper or improper : Viewing it in the second, 
we perceive that it is useful or detrimental. This 
distinction in the manner of considering an ac- 

VOL. I. A 



g OF THE PRINCIPLES OF 

tion is familiar to every one. It frequently hap- 
pens, that what proceeds from the best motives 
is hurtful in its effects ; and sometimes the most 
beneficial consequences result from actions dic- 
tated by caprice. 

Besides the good or evil, which results so 
immediately from an action, that it must have 
been in the contemplation and intention of the 
agent, there are other important, but indirect 
and remote, consequences, which, although apt 
to be disregarded by him, are perceived by the 
spectators, and modify, in a remarkable man- 
ner, their moral decisions. These indirect con- 
sequences may either coincide with the direct 
and immediate tendency of the action, or they 
may be opposed to it. In the one case, they 
will strengthen, in the other they will mitigate, 
the praise or blame, to which, in other respects, 
the action appears to be entitled. 

It seems scarcely possible that we should ap- 
prove or disapprove of an action, except on ac- 
count of the motives from which it proceeds, or 
of the effects directly resulting from it, or of the 
more remote consequences to which it gives rise. 
But the moral sentiments which have their origin 
from these separate sources, may vary from each 
other both in their nature and their force. 



MORAL APPROBATION. 



SECTION I. 



Of the Sentiments excited in the Spectator by the 
apparent Motives of the Agent 

When we view an action in reference to its 
cause, we attend to the motives of the agent, and 
consider whether these motives, in their nature 
and degree, are entitled to praise or blame. The 
only criterion, to which in this case we can refer, 
seems to be our own sentiments ; the motives by 
which we think that we ourselves should have 
been actuated, and the degree of influence which 
each of these motives would have exerted in form- 
ing our own determination. To himself, each 
man is the representative of the species. We in- 
stantaneously reflect on what, in similar circum- 
stances, we ourselves should have done ; if we 
perceive a coincidence between the conduct of 
the agent and that which we think we should 
have adopted, we approve of his behaviour ; if 
we perceive a contrariety, we say that he has 
acted improperly. It does not, indeed, seem 
possible for an impartial spectator to approve of 
any line of conduct which, independently of 
former experience of his own weakness, he does 



4 OF THE PRINCIPLES OF 

not believe that he himself would have followed, 
or to disapprove of what, under all the circum- 
stances, he thinks that he himself would have 
done. 

Nor, in setting up his own opinion as the 
standard for mankind, does an individual run 
much risk of departing from the truth. Re- 
moved from that temptation which the near pros- 
pect of an enjoyment or a suffering presents to 
our senses and our passions, (a temptation which 
at the time may overturn the most virtuous re- 
solutions) we judge with coolness and imparti- 
ality of all the motives which could influence the 
will. The conduct, which, after such a survey, 
we think that we should have adopted, will be 
that which, in similar circumstances, the rest of 
mankind, like us, would approve. Even the 
most abandoned wretch, in the absence of temp- 
tation, will usually ascribe to himself sufficient 
fortitude to overcome the delusions of passion, 
to follow what, at such a time, seems to him the 
natural line of conduct, and so to regulate his 
behaviour as to insure his own approbation. If 
experience has convinced him that he is apt to 
deviate from this course, he will be surprised at 
his own weakness, unable to recal, in their ori- 
ginal force, the motives by which he was misled, 



MORAL APPROBATION. 5 

and perfectly aware that what, even in his own 
case, appears strange and unaccountable, is not 
the rule by which he ought to judge of the mo- 
tives of others. 

This comparison between the conduct of our 
fellow-creatures and that which we think would 
have been our own, leads, by a well-known prin- 
ciple of our nature, to sentiments of pleasure or 
pain, and, through them, of affection or dislike. 

The pleasure which we derive from sympathy 
with the feelings, sentiments, and tastes of others, 
is too generally acknowledged, to require much 
illustration. It is the desire of this enjoyment 
which connects together men, who, however dis- 
similar in their characters, are gratified by the 
same objects, or strongly interested in the same 
pursuits. It is the capacity of conferring this 
enjoyment, which, in society, is the powerful at- 
traction of those who, without unworthy com- 
pliance, fall easily into the tastes and feelings of 
their acquaintances. It is the experience of this 
gratification which sometimes produces an inti- 
mate union between persons who have never 
seen each other, and which constitutes the only 
indissoluble bond of friendship. No respect for 
worth or talents can occasion an intimacy be- 
tween those who feel no mutual sympathies, who 



(j OF THE PRINCIPLES OF 

are entirely occupied in different pursuits, de- 
rive their enjoyments from separate sources, or, 
on subjects in which both are deeply interested, 
entertain very opposite opinions. If, in such 
circumstances, friendships, formed under more 
happy auspices, can at all be preserved, it is only 
by avoiding the particular subjects, on which 
taste, interest, and opinion disagree, and confi- 
ning conversation to topics on which the sympa- 
thy is still complete. 

It is another acknowledged principle of our 
nature, that the pleasure or pain, of which a sen- 
tient being is the immediate cause, is always at- 
tended with sentiments of affection or dislike. 
From the fruit which is agreeable to our palate, 
or the scene which delights our imagination, we 
receive the simple pleasure, without any acces- 
sory feeling of tenderness towards the objects 
from which it is derived. But it is not so when 
we can trace our pleasurable or painful emotions 
to a sentient being as their cause ; and among 
sentient beings, Man is the chief object of all 
our affections. No pleasure derived from him is 
so trifling as to be unproductive of at least a mo- 
mentary good-will ; no pain so transient as not 
to leave some traces of alienation or dislike. 

When, therefore, we approve of the motives of 



MORAL APPROBATION. 7 

an agent, we not only perceive that the action, 
being such as we ourselves would have perform- 
ed, is right and proper, but we also feel pleasure 
from sympathy with the sentiments which led to 
it, and affection towards the person from whose 
behaviour this pleasure is derived. On the other 
hand, when we disapprove of an action, as incon- 
sistent with our own sentiments, and therefore 
improper and wrong, we experience pain from 
the total want of sympathy with the agent, and 
conceive dislike towards him by whose perverse- 
ness this pain has been occasioned. 

In a similar way we judge of the propriety of 
our own motives. When immediate enjoyment 
no longer solicits our desires, and the terror of 
threatened pain has lost its overwhelming influ- 
ence over our resolutions, we review our own 
conduct in that dispassionate frame of mind, 
which, disregarding the adventitious circumstan- 
ces that gave to some of our motives unusualforce, 
appreciates them all according to their proper 
degree of influence upon the will. If, on such 
a review, we can sympathize in our former feel- 
ings \ if we think that we should now act in the 
manner, in which, amidst the conflict of adverse 
passions, we had conducted ourselves ; we ap- 
prove of our behaviour, and feel the highest sa- 






8 OF THE PRINCIPLES OF 

tisfaction and pride in our self-applause. On the 
other hand, if, no longer sympathizing in our for- 
mer feelings, we look back, with wonder and re- 
gret, to actions of which the motives now appear 
frivolous, selfish, or absurd, the consciousness of 
having incurred our own disapprobation and that 
of our fellow-creatures, overwhelms us with a 
sense of our own debasement 

Such are nearly the principles of human na- 
ture, from which Dr Smith * has accounted for 
our sense of the propriety and impropriety of 
actions, and which he has illustrated with equal 
ingenuity and eloquence. The system appeals 
for its truth to the feelings and experience of 
mankind, and is strongly supported by the sa- 
tisfactory manner in which it explains all those 
determinations of the moral sense, which are re- 
ferable, not to the consequences of actions, but 
to the motives which regulated the conduct of 
the agent. 

In endeavouring to account for any phenome- 
non, it is a presumption in favour of our hypo- 
thesis, that the assumed cause has been followed 
in other instances by analogous effects ; our con- 

* See his Theory of Moral Sentiments, Part I. The differ- 
ence between his theory and that in the text will be afterwards 
noticed. 



MORAL APPROBATION. 9 

fidence in the opinion is increased, if we find that 
cause invariably accompanying the effect ; and 
every deficiency in the proof is supplied, if the 
degree of the one is always accurately propor- 
tioned to that of the other, or if, when this cor- 
respondence does not appear, we can account in 
a consistent manner for the departure from the 
general rule. 

In the system which we are now considering, 
these several tests of truth seem happily to com- 
bine. 

Sympathy with the feelings of our neighbours 
being a source of pleasure to ourselves, and pro- 
ducing good-will towards them, we should natu- 
rally expect the analogous sympathy with motives 
to be productive of similar pleasure, and of simi- 
lar kindness and esteem. A very slight reflection, 
too, on what passes in our own breasts, may con- 
vince us, that whenever a motive is approved of, 
this sympathy exists ; and that the degree of ap- 
probation is usually proportioned to the degree 
in which we sympathize with the desires or aver- 
sions which appear to have influenced the will. 
If this sympathy be perfect, if, on a review of all 
the circumstances, we conceive that we should 
have acted precisely in the same manner, our 
approbation will also be complete, and our be- 



10 OF THE PRINCIPLES OF 

ncvolent affections strongly excited : if our sym- 
pathy be partial, so also will be our commenda- 
tion : if there be greater opposition than agree- 
ment between our sentiments and those of the 
agent, in the same degree shall we blame his 
conduct : and if there be a total contrariety and 
repugnance, according as his motives appear to 
have been capricious, weak, or wicked, he will 
become the object of our dislike, contempt, or 
abhorrence. 

But although this correspondence be in gene- 
ral observable between the degree of our sympa- 
thy with the motives of an agent, and the de- 
gree of approbation or blame with which we re- 
gard his action, there are many cases in which 
what we acknowledge to be proper excites no 
applause, and there are even some in which 
what is directly repugnant to the feelings of 
mankind occasions little or no disapprobation. 
To eat when we are hungry, to pay our debts, 
to relieve the wants of others by parting with 
what is of no importance to our own comfort, 
though they occasion no emotions in the breast 
of the spectator, are actions as completely pro- 
per as the greatest efforts of heroism ; and, on 
the other hand, even the atrocious crimes of a 
mother deserting her offspring, or of one man 



MORAL APPROBATION. 1 1 

reducing another to slavery, have scarcely exci- 
ted indignation in the minds of virtuous and wise 
philosophers. Such irregularities, however, in 
the moral sentiments of mankind, may usually 
be accounted for from the known effects of no- 
velty and surprise on the one hand, or of custom 
on the other. 

When, on contemplating a sentiment entirely 
new to us, or at least of rare occurrence, we find 
it consonant to our own feelings, the novelty, it- 
self occasioning a pleasurable emotion, increases 
the intensity of the sentiment of approbation. It 
is owing to this circumstance that the ingenious 
way in which kindness may be shown sometimes 
more than doubles the obligation ; and that he- 
roism displayed in an unusual manner, though 
perhaps requiring no greater energy of mind, is 
more admired than those of its forms to which 
we have been accustomed. It is not very fre- 
quently, indeed, that novelty can thus add its 
own emotion to that which springs from sympa- 
thy ; for, in the varied occurrences of human 
life, almost every species of feeling, and every 
manner in which it can influence our behaviour, 
become familiar to the mind. But it is not so 
with surprise ; this emotion being excited when- 
ever the feeling that is evinced greatly exceeds, 



12 OP THE PRINCIPLES OF 

or tails short of, that degree of intensity which 
previous experience of mankind had led us to 
expect. 

In ordinary cases, we find every one acting 
in the manner in which we ourselves should have 
acted. An additional instance of this coin- 
cidence, however perfect, calls no attention, 
and produces no pleasure. It passes as a com- 
mon occurrence, which, having fully expected, 
we do not regard ; and consequently our appro- 
bation is a sentiment which we scarcely perceive, 
and never express. But a remarkable devia- 
tion, where we looked for the most complete 
agreement, rouses the mind, and gives a high 
degree of intensity to the feeling of disgust. 

In like manner, when, from experience of our 
own imperfections or those of others, we enter- 
tain no hope of an exact coincidence between 
the sentiments of the actor and our own, we 
pass over, with slight animadversion, the usual 
degree of deviation from propriety. But if, in- 
stead of this expected weakness of character, we 
find that, by an extraordinary effort of self-com- 
mand, each conflicting motive has been confined 
to that degree of force with which the cool spec- 
tator can fully sympathize, the surprise, occasion- 
ed by so unusual a display of mental energy, 
6 



MORAL APPROBATION. 13 

raises the pleasurable feeling of sympathy to 
rapture. It is when the mind is roused to 
strong exertion that every emotion or passion 
sinks deep into the soul. In this respect, the 
sentiment of approbation is similar to all other 
feelings of our nature. Surprise, by produ- 
cing a state of great excitability, increases the 
intensity of all our emotions, whether they be of 
approbation or of blame, of affection or of dis- 
like, of admiration, of sublimity, of terror, or of 
disgust. 

In whatever way this surprise may be exci- 
ted, whether by our general experience of hu- 
man nature, or by our knowledge of the nation- 
al character, or by our acquaintance with the pe- 
culiar education, habits, and feelings of the indi- 
vidual, its effect in heightening our moral senti- 
ment is precisely the same. The character and 
education of an Indian lead us to expect from 
him the greatest fortitude in the midst of tor- 
ments. We never, indeed, can sufficiently fami- 
liarize ourselves to habits so remote from our 
own, as to withhold our admiration of a degree 
of self-command, which to another Indian would 
appear undeserving of applause. But, were the 
same coolness to be displayed by a European in 
the midst of tortures, our admiration would rise 



14 OF THE PRINCIPLES OF 

to a much higher tone of sublimity. For the 
same reason, the degree of admiration with which 
wc regard the elder Brutus will depend on the 
character which we ascribe to him : whatever 
that character may have been, the sacrifice of 
his own feelings to the safety and liberty of his 
country will be approved \ but if it were ascer- 
tained that he had little parental tenderness to 
subdue, if the conflict was easy between the 
virtue of the patriot and the affections of the fa- 
ther, our applause of his magnanimity would in- 
stantly subside. It is the difficulty that has been 
overcome, and the surprise excited by unusual 
force of character, that render the sentiment of 
propriety elevated and sublime 

The effect of custom, on the other hand, is to 
make an action pass without observation, and 
thus to weaken our sense either of its propriety 
or unworthiness. When a practice has grown 
up with the state, when we have been accustom- 
ed to it from our infancy, and have seen it adopt- 
ed by men of every character, the mind no long- 
er perceives it with any sentiment either of praise 
or of blame. Barbarous institutions have thus 
been preserved so long after the circumstances 
in which they originated had ceased to exist,- 
that even the w r ise have at last seemed insensible 



MORAL APPROBATION. 15 

to their folly. If custom sometimes appear to 
have a more powerful influence on moral senti- 
ment, bestowing even applause on actions trivial, 
ridiculous, or unjust, this irregularity may always 
be traced to some association between such ac- 
tions, and real virtues, of which they are the sup- 
posed indications. It is thus that young men are 
apt to admire prodigality as an indication of spi- 
rit, and that the superstitious of almost every 
country have worshipped apathy, penance, and 
cruelty, which had become associated in their 
minds with piety and wisdom. Custom may in- 
deed be regarded as one of the greatest corrupt- 
ers of our moral sentiments, although its in- 
fluence, in this respect, has perhaps been over- 
rated. Sometimes it may defraud virtue of her 
just applause, and still more frequently disguise 
the deformity of vice ^ but never can it repre- 
sent the latter as an object of love, or respect, 
except by showing her through a deceitful me- 
dium, adorned with borrowed charms. 



1 6 OF THE PRINCIPLES OF 



SECTION II. 

Of the Sentiments excited in the Spectator by the 
direct Consequences of an Action. 

When we transfer our attention, from the mo- 
tives of the agent to the consequences which re- 
sult from his action, a totally different set of emo- 
tions are excited ; emotions not merely of appro- 
bation or blame, of kindness or dislike, but the 
more energetic sentiments of merit and demerit, 
the desire of rewarding, and the desire of pu- 
nishing. 

However high our sense of propriety or im- 
propriety may be carried by surprise, whatever 
admiration or abhorrence may be excited by 
the motives of our fellow-creatures, never do we 
feel any desire, merely from such emotions, to 
bestow upon them a reward or to inflict upon 
them a punishment. The sentiments of proprie- 
ty and impropriety seem, in this respect, analo- 
gous to those produced by beauty and deform- 
ity. They occasion a general good-will or dis- 
like ; but they rarely incline us to confer happi- 
ness, and never to inflict pain. It is otherwise 



MORAL APPROBATION. 17 

when we contemplate the consequences of ac- 
tions. Not satisfied with expressions merely of ap- 
plause or of blame, we become impatient to add 
to the happiness, or the misery, of the agent, in 
such a manner that he shall feel this addition to 
his pleasures or his pain to be the result of his 
own behaviour. 

Still, however, these sentiments are, in a great 
degree, dependent upon the propriety of the ac- 
tion. We can have no inclination to punish what 
proceeds from motives with which we fully sym- 
pathize ; nor can we wish to reward him whose 
conduct seems selfish or absurd. Propriety, then, 
modifies, and may sometimes altogether annihi- 
late, our desire of rewarding or of punishing ; 
though of itself it does not excite such desires. 

If we ourselves are the objects of an action, 
we can scarcely doubt that its utility or hurtful- 
ness are the circumstances which give rise to our 
desire of rewarding or of punishing. When our 
enjoyments have been increased by the volunta- 
ry act of another, the addition to our happiness 
is productive of gratitude, which seeks to make 
compensation for the benefit received. When, 
on the other hand, our enjoyments have been 
diminished, or pain has been inflicted upon us, 
our minds are filled with resentment which 

VOL. I. b 



IB OF THE PRINCIPLES OF 

prompts us, with force almost irresistible, to re- 
turn evil for evil. Nor are such feelings satisfied 
by the happiness or misery which may befall our 
benefactor or enemy, without our intervention. 
Our gratitude requires that the benefit, our re- 
sentment demands that the punishment, should 
be our own act, and should be decidedly felt as 
the consequence of the kindness or injury which 
we had received. 

We are not only sensible of our own pleasures 
and pains, our own desires and aversions, but 
enter readily and warmly into all the emotions 
of others. The sight of distress makes us me- 
lancholy, that of joy cheerful ; nor can our fel- 
low-creatures feel any sentiment, in which, by 
sympathy, we do not participate. The specta- 
tor accordingly sympathizes with all the emotions 
of him who is immediately affected by an action. 
When he attends to its consequences, he per- 
ceives that it occasions some degree of happi- 
ness or misery ; by sympathy, he feels a portion 
of these sensations, a degree of pleasure or of 
pain associated in the strongest manner with the 
action. Nor is this all. Sympathizing also in 
the gratitude which the action is fitted to pro- 
duce, he is willing to assist in rewarding him 
from whom the benefit has been received : or* 



MORAL APPROBATION. 19 

feeling an indignation similar to the revenge of 
the sufferer, he is ready to assist in punishing 
that violence or fraud by which the injury has 
been committed. His sentiments, though weak- 
er, are precisely of the same nature with those 
of the person who is the object of the action ; 
and, like him, he ascribes to it merit or deme- 
rit, according as it excites his sympathetic gra- 
titude or indignation. It would surely be super- 
fluous to prove by many illustrations the exist- 
ence of these sympathies : It is through them 
that we become interested in the hero of a poem 
or a play ; that we tremble when he is in dan- 
ger, rejoice when he is happy, that we desire the 
prosperity of his friends, and exult in the punish- 
ment of his oppressors.* 

Precisely on the same principles, do we judge 
of the merit or demerit of our own actions. No 



* Mr Hume, in his Enquiry concerning the Principles of 
Morals, has accumulated a vast variety of observations to illus- 
trate the power of utility over our moral sentiments. That it is 
by sympathy with the feelings of the person who is benefited 
that the spectator derives pleasure from utility can scarcely be 
doubted ; but the mode in which this sympathy is excited is a 
question of great difficulty, upon which it would be improper, 
ih this preliminary essay, to enlarge. The author will say only, 
that he is not conscious of that imaginary change of place to 
which Dr Smith seems to ascribe it. * 



20 OF THE 1'UINCIPLES OF 

longer influenced by the immediate solicitations 
of pleasure, or the immediate terrors of pain, we 
coolly review our own conduct, and observe 
what consequences have resulted from our ac- 
tions. If they have been such as to increase the 
happiness and excite the gratitude of others, sym- 
pathizing with their pleasure, and with their desire 
of rewarding their benefactor, we ascribe merit 
to ourselves. If, on the other hand, we have in- 
jured, and excited the resentment of our neigh- 
bours, we sympathize with the pain they have 
endured, and feel that indignation at ourselves 
which brands our conduct *with the stamp of 
demerit. Even our self-love cannot conceal 
from us that such is the real character of the ac- 
tion which we have committed, or prevent our 
conscience from reminding us of that resent- 
ment which we have justly incurred. In so far, 
the sense of our own merit or demerit is exactly 
analogous, to what we should have felt, if we 
had been considering the actions of another. 
But, besides this, we cannot avoid the reflection 
that we ourselves are the objects of those senti- 
ments. If we regard ourselves as the objects of 
approbation, on account of the propriety of our 
conduct, and of gratitude, on account of its e£ 



MORAL APPROBATION. 2 I 

fects, we feel an honest pride and self-gratu- 
lation, which greatly heighten the pleasure deri- 
ved from the propriety and utility of the action. 
If! on the other hand, we consider ourselves as 
the proper objects of disapprobation, and of in- 
dignation, we are overwhelmed with a sense of 
our own debasement. These sentiments are add- 
ed to those which we feel from the actions of 
others, and perhaps no emotions of our nature 
are so intense, as sucli a pride, or such a humi- 
liation* Self-applause is compounded of admira- 
tion, of gratitude, and of pride, all highly plea- 
surable emotions £ can we wonder that it should 
swell to rapture ? Self-condemnation is compo- 
sed of abhorrence, of indignation, and of self, 
abasement, all highly painful emotions ; can we 
be surprised that remorse should lead to des* 
pair ? * 



* In judging both of the propriety and merit of our dwri 
actions, Dr Smith is of opinion that we do not sympathize 
directly with the motives by which we were influenced, or with 
the feelings of the person affected by our action,- but with the 
sentiments o£ the impartial spectator. This double sympathy, 
while it encumbers the theory, seems altogether unnecessary. 
When no longer under the power of temptation, each man is 
to himself the impartial spectator of his former actions, and he 
is more likely to sympathize with the real happiness or suffering 
which he has occasioned j than with the feelings of bye-stand* 



qq OF THE PRINCIPLES OF 

The account which has now been given of 
the merit and demerit of actions is founded on 
well-known principles of human nature, and seems 
to agree with the experience of mankind. The 
sympathetic feeling of the spectator is not only 
of a similar nature with the emotion of him who 
is the object of the action, but the former of 
these sentiments is, in general, accurately pro- 
portioned to the latter. When, in consequence 
of an important benefit, the gratitude of the 
person whose happiness has been increased is 
strongly excited, we find a proportional sense 
of merit entertained by those who contemplate 
the action : when a serious injury has excited, 
in a high degree, the resentment of the suffer- 
er, we find strong indignation swelling in the 
breast of the spectator. It must be acknowled- 
ged, however, that this observation is not uni- 
versal ; that occasionally the emotions of the 
spectator exceed those of the person benefited 

ers. Besides, this double sympathy gives rise to an embarrass- 
ing objection to the theory as explained by Dr Smith. Every 
feeling is weakened by reflection, as Dr Smith himself has fu% 
shown ; the sense, therefore, of the propriety and merit of our 
own actions must be weaker than those sentiments entertained 
of them by others, of which our sentiments are merely copies : 
But this is contradicted by experience, no emotions of our na- 
ture being so energetic as self-applause and self-condemnation. 



MORAL APPROBATION. 23 

or injured ; and that, sometimes, they fall short 
of them in a remarkable degree. But such de- 
viations from the general rule, if founded on si- 
milar sentiments, or easily accounted for from 
other known principles of human nature, will 
perhaps corroborate, in place of overthrowing, 
the system. 

I. When our happiness is suddenly increased, 
we are not very fastidious regarding the motives 
from which the benefit proceeded, but, in the 
fulness of our hearts^ we are ready to communi- 
cate pleasure to every one at all connected with 
the event* In a still greater degree, when suf- 
fering unexpected and unmerited pain, We are 
apt to feel a desire of vengeance which pays 
little attention to the circumstances in which he, 
whom we consider as the perpetrator of the mis- 
chief, may have been placed* We are disposed 
to reward the mere messenger of good news, and 
too apt to entertain dislike or malice against him 
by whom we have been informed of a great mis- 
fortune. Even the letter which announces a dis- 
appointment is torn, and the stone by which we 
have been hurt is broken in pieces in our wrath. 
With such emotions the spectator is so far from 
sympathizing, that he frequently feels a senti- 
ment of a very opposite kind. In our own case.* 



24 OF THE PRINCIPLES OF 

the gratitude, or revenge, excited by the increase 
or diminution of happiness, is so deeply felt as 
for some time to engross the whole of our atten- 
tion, and to render us insensible of the nature of 
the action by which we are affected . Alive only 
to the emotions, we are regardless of every cir- 
cumstance by which our opinion of the agent 
might be modified. But sympathetic feelings 
are comparatively weak. The spectator, not be- 
ing hurried away with resistless force, has time 
to examine the motives, to enquire whether the 
good or evil really arose from intention, and to 
correct his sympathies with the one party, by 
those which he equally feels for the other. In 
making such enquiries, his sympathy with grati- 
tude may sometimes be diminished, and that 
with revenge will frequently be destroyed. 

II; We sometimes ascribe great merit or de- 
merit to an action which causes very weak emo- 
tions in the person immediately affected ; and oc- 
casionally the violence of his feelings, in place of 
exciting the sympathy of the spectator, produces 
a very contrary effect. To confer a benefit on an 
infant, or on one who, as he can never hear of the 
obligation, can feel no kind of gratitude, is high- 
ly meritorious ; while to injure a child, or him 






MORAL APPROBATION. Q5 

who is unable to appreciate the injury, calls forth 
the strongest indignation of mankind* In the 
one case, the certainty of the motive being dis- 
interested produces a favourable disposition to- 
wards the agent, making us enter warmly into that 
gratitude which seems the natural and just re- 
turn for the benefit ; in the other case, the base 
and ungenerous sentiments, from which the ac- 
tion must have proceeded, rouse an abhorrence 
which heightens the indignation naturally exci- 
ted by the injury. Nor is it requisite that the 
person affected by the action should actually feel 
gratitude or revenge, in order that the spectator 
may sympathize with those emotions. When cir- 
cumstances fitted to excite such sentiments are 
presented to us even in fiction, the feelings 
which, under similar treatment, we should have 
experienced, spring up in our minds. That the 
person benefited or injured is incapable, from in- 
fancy, folly, or absence, to appreciate the good 
or evil which has befallen him, cannot prevent 
us from sympathizing with those sentiments, 
which, at a more advanced age, or if endowed 
with the usual portion of reason, or if present, 
he would have felt : On the contrary, the con- 
trast between his apathy, and the emotion natu- 
ral and unavoidable to the rest of mankind, by 



£6* OF THE PRINCIPLES OF 

occasioning a degree of surprise, and rousing the 
mind, adds force to the feelings of the specta- 
tor.* 

In order, however, that our sympathy with gra- 
titude or revenge may be lively, we must in ge- 
neral approve of the degree of emotion express- 
ed by the object of the action. When a man is 
elated by a slight advantage, or cast down by a 
trivial misfortune, his character inspires such 
contempt, that we can pay little attention to 
any of his feelings. When, on the other hand, 
amidst unlooked-for happiness, or unexpected 
distress, we see him retain his composure, and 
express only such joy or sorrow, such gratitude 
or revenge, as seem proper to the unconcerned 
spectator, our delight in this unusual degree of 
propriety and mental energy excites such sym- 
pathy with all his emotions, that our gratitude 
to his benefactor, and indignation at his enemy, 
partake of the enthusiasm of our admiration. 

III. It may be remarked, that our sympa- 
thy is much more perfect with gratitude, than 
with revenge. In the former the feelings of the 
spectator often equal, and sometimes exceed, 
those of the person benefited ; in the latter, they 

* Hume's Treatise on Human Nature, Book II. Part IT. 
Sec. 7. 



MORAL APPROBATION. 2? 

are comparatively languid. Our gratitude for 
favours which we ourselves have received may 
frequently appear deficient to those acquainted 
with the obligations which we He under ; but 
it is seldom that revenge does not exceed the li- 
mit prescribed by the sympathetic indignation 
of mankind. Vanity is ever busy in extenuating 
obligations which remind us of our inferiority ; 
and the object of gratitude being to requite the 
kindness which we have received, in a way that 
demands some sacrifice of our interests, self-love 
is anxious to depreciate the benefit, or, if this 
be impossible, to represent it as in part the off- 
spring of accident, or the just reward of our 
own perfections. But being neither humbled by 
the favour, nor incommoded by its requital, we 
view a benefit conferred on others through a 
juster medium ; and acknowledge the full weight 
of the obligation more readily than he can do, 
whose sentiments of gratitude are weakened and 
combated by his selfish feelings. Besides, the 
direct aim of gratitude being to increase the hap- 
piness of one whose sentiments we admire, we 
enter warmly into the pleasure that will flow 
from the requital of the benefit ; and this new 
sympathy adds its force to that which we felt 
with the sentiments of him who has received 



28 OF THE PRINCIPLES OF 

the obligation. In this way, our reflected feelings 
of gratitude acquire an intensity seldom inferior, 
and sometimes greatly superior, to the emotions 
of which they may be considered as the copies. 
With regard to revenge, all these accessories 
are reversed ; and in place of strengthening, tend 
to weaken, the sympathy of mankind. iVery 
thought or feeling, when we ourselves are inju- 
red, enlivens and invigorates our resentment. 
The sense of humiliation, the contrast of this 
humiliation with our fancied deserts, the selfish 
propensity to magnify whatever immediately af- 
fects ourselves, and to exaggerate every pre- 
sent pleasure or pain : all these feelings aggra- 
vate our sense of injury, and embitter our re- 
sentments. But in the case of others, we confine 
our sympathy to that feeling of revenge, which, 
when stripped of all those accessories, appears 
natural and just. Even with this degree of the 
sentiment, we cannot fully sympathize. We can- 
not be blind to the direct consequences of pu- 
nishment ; we cannot forget that its object is to 
inflict pain on a fellow-creature ; and though our 
sympathy with the criminal is greatly weakened, 
yet it is not totally destroyed, but utters a " still 
" small voice" in favour of mercy. 



MORAL APPROBATION. 29 

Many feelings thus weakening gratitude and 
aggravating revenge, while other associations 
produce opposite effects on the sympathetic feel- 
ings of the spectator, we cannot wonder that the 
gratitude of him who is benefited should fre- 
quently appear to others cold and formal, nor 
that resentment of our own wrongs, should, in 
almost every case, be condemned as violent and 
vindictive. 

IV. Surprise and admiration always heighten 
the feelings of gratitude or indignation, whether 
the benefit may have been conferred, or the in- 
jury inflicted, on ourselves or others. 

Surprise is well known to rouse the energy of 
the mind, and to render it highly susceptible of 
every kind of emotion. Accordingly, if there be 
any circumstance in the action to occasion sur- 
prise, if a degree of self-command be exhibited re- 
markably superior or inferior to what our experi- 
ence of mankind, or of the individual, has taught 
us to expect, it is natural that the impressions of 
gratitude or of indignation should be proportion- 
ally increased. Hence we experience an energy 
of emotion, which seems more than commen- 
surate to the real degree of benefit or injury, up- 
on the unexpected relenting of an obdurate cre- 
ditor, or the treachery of a trusted friend. 

6 



30 OF THE PRINCIPLES OF 

Much, too, will depend on the nature of the 
benefit or injury, on its being easily comprehend- 
ed in all its parts by the understanding, easily 
painted in lively colours by the imagination, and 
thus fitted to make a strong, instantaneous, and 
decisive impression on the affections. We all 
know that a tale of private distress interests us 
more strongly, than the infinitely greater suffer- 
ings of an army or a nation. To give vivacity 
to our feelings for the latter, it is necessary to 
select a few circumstances, and to present them 
in a concentrated view. It is thus that Poussin, 
in painting the Massacre of the Innocents, has 
produced, by three simple groups, an impression 
which other painters, by crowding their canvass 
with varied images of death and of despair, have 
attempted in vain. It is natural therefore, though 
it may seem unjust, that a hero, who, by one 
splendid effort, has protected his country, should 
be received with acclamations, while the prince, 
whose whole life is a continued source of happi- 
ness to his people, is more coldly applauded. 
Amidst the allurements of unlimited power, to 
keep a strict watch over his own passions, and 
those of his courtiers, may probably require a 
greater and more unusual degree of self-com- 
mand, than, in a moment of enthusiasm, to be 



MORAL APPROBATION. 



the devoted victim of the most ardent patriot- 
ism ; nor can the happiness, occasioned by the 
latter, be put in competition with that public 
prosperity, that widely-diffused felicity, flowing 
from a wise and virtuous administration. But 
neither is the heroism so conspicuous in the just 
and impartial ruler, nor are the benefits to his 
country, though infinitely more important, so 
palpable or so impressive. Continued acts of 
beneficence may be compared to a river, which, 
gliding among varied hills and smiling valleys, 
diffuses health, and fertility, and joy. Heroism 
is the mountain torrent, which, pouring impetu- 
ously from the rock, overwhelms us by its force, 
takes entire possession of our souls, and with an 
energy, which spurns every calculation of bene- 
fit, hurries on our admiration to rapture. 




3'1 OF THE PRINCIPLES OF 



SECTION III. 



Of the Sentiments excited in the Spectator by the 
indirect Consequences of an Action. 

It might appear, on a cursory view, that, ha- 
ving examined the sentiments excited in the 
spectator by his sympathy, with the motives of 
the agent, and with the feelings of the person 
affected by the action, we have sufficiently ascer- 
tained the principles of moral approbation. But 
sometimes the consequences of actions reach far 
beyond their immediate objects, and exceed, in 
a remarkable degree, what was either in the con- 
templation or intention of the agent. Such con- 
sequences, if altogether fortuitous, or depend- 
ing on circumstances contingent and unexpect- 
ed, can add nothing to the merit or demerit of 
an action. But, if they be so much connected 
with it, that the one can scarcely be present- 
ed to a mind of ordinary intelligence without 
suggesting the other, the more remote and indi- 
rect consequences, in that case, immediately oc- 
cur to the spectator, who will not fail to sympa- 
thize with the good or evil which they are calcu- 



MORAL APPROBATION. 33 

lated to produce. The indirect consequences of 
actions, by which our moral decisions are modifi- 
ed, may be reduced to two classes : according as 
they lead us to anticipate future actions proceed- 
ing from the sentiments evinced by the agent ; 
or as they affect the general rules of morality. 

I. It. can scarcely escape observation, that the 
usual tendency of some sentiments and emo- 
tions is to increase happiness, that of others 
to produce misery. Good-humour, temperance, 
compassion, and courage, can scarcely be exhi- 
bited, without suggesting advantages to the indi- 
vidual, his friends and his countrymen, which, on 
many occasions, must result from them : nor can 
malevolence, intemperance, rage, or cruelty, be 
shown in our presence, without reminding us of 
the numerous evils which they introduce into fa- 
milies and society When the utility of an emo- 
tion is obvious and great, we are led to sympa- 
thize with the pleasure which we foresee that it 
will frequently occasion ; and hence we are more 
delighted with it, when properly excited, and 
even disposed to pardon some slight impropriety 
in its expression. Thus, good-humour is so agree- 
able, that we are not much disgusted though hi- 
larity should be rather misplaced ; and pity is of 

vol. 1. c 



34f OF THE PRINCIPLES OF 

such essential service to mankind, that an excess 
ofit, though deemed a weakness, can scarcely be 
severely blamed. On the other hand, the hurt- 
ful tendency of an emotion adds materially to 
the disapprobation which we feel for its impro- 
priety, by recalling to us many occasions on 
which it is likely to lead to injury and crime. 

If utility has so great a share in the approba- 
tion or disapprobation of simple emotions and 
passions, we may expect it to have a much more 
powerful influence, when, by real actions, the na- 
tural consequences of these emotions are set fully 
in our view. We judge of the utility of particu- 
lar dispositions and sentiments, either from the 
recollection of former instances in which we have 
observed their effects ; or from probable cases, 
framed in our own minds, in which we anticipate 
their consequences ; or from habits of thinking, 
formed partly by our own experience, and partly 
by the precepts of our instructors. But when the 
real consequences of an action are immediately 
before us, all those views of the probable effects 
of the dispositions, from which it proceeded, are 
strengthened and enlivened. The mind passes 
easily, from the immediate and direct perception, 
to those recollections and anticipations which so 
nearly resemble it ; and the established habit of 



MORAL APPROBATION. 35 

thinking is strongly recalled to our attention, by 
a new fact, in every respect analogous to those 
by which it was originally formed. By means of 
this accurate resemblance, both of the facts, and 
of the emotions which they excite, the mind 
passes, almost imperceptibly, from the present 
impression, to ideas so strongly associated with 
it, transferring to the indirect utility part of 
that vivacity and force, which arise from sym- 
pathy with the feelings of the person immedi- 
ately affected by the action ; in the same man- 
ner, that the picture of an acquaintance forcibly 
recals to us the qualities of his mind, or that the 
resemblance of a friend prepossesses us in favour 
of a stranger, or that our own misfortunes, if they 
do not totally absorb our attention, increase our 
sympathy w r ith those of others. 

When we behold a humane and generous ac- 
tion, we follow the actor to imaginary scenes, 
and conceive the manner in which he will con- 
duct himself in the different relations of life. We 
view him as a dutiful son, an affectionate father, 
a warm friend, an indulgent master, a virtuous 
citizen. Imagining a thousand situations in which 
he will diffuse happiness around him, we sympa- 
thize in this happiness, and in the gratitude of 
those who are likely to be benefited by his vir- 



36 OF THE PRINCIPLES OF 

tues, On the other hand, when we contemplate 
a vicious action, and know that it had its origin 
in ill-regulated passions, or in evil habits, that it 
was coolly conceived and deliberately executed, 
we immediately represent to ourselves the un- 
easiness and alarm, which, in the dread of new 
and worse excesses, must be felt by all the con- 
nections and neighbours of the criminal; our ima- 
gination sets before us numerous atrocities, and, 
sympathizing in that indignation, which we fore- 
see will often be excited, we reckon every ch% 
cumstance which adds force to our anticipations 
an aggravation of the crime. But, if we find 
that the criminal had been led away by the ex- 
ample of those whom he esteemed, or prompt- 
ed by a sudden ebullition of passion unusual 
in his character ; still more, if he show such a 
contrition as affords some security for his fu- 
ture conduct, and express an earnest desire of 
compensating the injury which he has occasion? 
ed : Such circumstances, by lessening the pro- 
bability of his causing future evil, and thus di- 
minishing the alarm, are universally considered 
as alleviations of his guilt. But as neither the 
aggravations nor alleviations, arising from such 
views of his future conduct, can increase or di- 
minish the pain which he has inflicted on a fel- 



I 



MORAL APPROBATION. 37 

low-creature, their influence on our moral senti-* 
ments must be derived from their powers of sug- 
gesting or counteracting probable anticipations 
of evil. 

This species of indirect utility appears very 
similar to that which has resulted from the ac-^ 
tion; being distinguished from it only in this, 
that, while the one prompts our moral decisions 
by sympathy with the happiness or misery which 
has in reality been created, the other produces 
a similar, though weaker, effect, by sympathy 
with good or evil only anticipated and probable, 
n this manner, however, an action is held to be 
more meritorious or more criminal, from infe- 
rences of the spectator quite independent both 
of the intention of the agent, and of the direct 
good or evil which has followed from his action. 

II. Man is so governed by habit, that some- 
times, seeming to overlook the motives of the 
agent and the direct consequences of the ac- 
tion, he approves or disapproves from general 
rules derived from former experience. His at- 
tention, in some degree withdrawn from what is 
passing before his eyes, is fixed on judgments 
which he had formerly pronounced ; or rather it 
is directed to that general rule, which he had 
framed to himself from the consideration of those 



38 OF THE PRINCIPLES OF 

analogous cases, and which, by the similarity of 
the present circumstances, is recalled to his mind. 
Every instance of virtue or vice which may come 
under his observation, every sentiment he may 
experience of approbation or of blame, of grati- 
tude or of indignation, tends strongly to con- 
firm his love of virtue, and his hatred of vice ; till 
at last, his judgment, in any particular instance, 
is pronounced, not merely on the merits of the 
case itself, but according to fixed and settled ha- 
bits of thinking, by which one species of action 
is applauded and another reprobated, on account 
of the class to which it belongs. That which 
has often been approved becomes associated with 
the sentiment of admiration^ that which has 
often been condemned, with the sentiment of 
dislike ; nor can circumstances similar to those 
by which such associations were formed be pre- 
sented to our minds, without exciting similar emo- 
tions. 

The advantages of this constitution of man 
are sufficiently obvious. When we are exposed 
to temptation, or under the influence of head- 
strong passion, the wishes, interests, and rights 
of others, and even our own real and permanent 
happiness, being overlooked, we are apt to plunge 
headlong into imprudence or into crime. At 



MORAL APPROBATION. 3 9 

such times, the more distant consequences of the 
action are disregarded, and the warning voice of 
experience, denouncing future misery, is over- 
powered by the turbulence of passion. But the 
general rule, formed by a multitude of succes- 
sive observations, is so firmly associated with the 
situation in which we are placed, that it instant- 
ly recurs to our mind, and, arresting us in our 
career, makes us feel, that, as in all former cases 
we condemned the conduct which we are about to 
adopt, so also, in this instance, shall we equally 
condemn it, when, no longer blinded by passion, 
we shall coolly and impartially review our own 
behaviour. This habitual influence of the ge- 
neral rules of morality constitutes that sense of 
duty which alone can be effectually opposed to 
the seductions of present pleasure, or the terrors 
of present pain. 

Nor is the force of general rules of morality 
less beneficial in judging of the conduct of others. 
When an action is performed in our presence, 
we are apt to be too much engrossed by a few of 
its more prominent effects, to the exclusion of 
others, which, though less striking, may be infi- 
nitely more important. But our confirmed habits 
of thinking recur, and remind us of our former 
decisions with a degree of strength sufficient to 



40 OF THE PRINCIPLES OF 

arrest our precipitate judgment, until we can re- 
view the circumstances, and account for the dif- 
ference between our present and our habitual 
sentiments. The vivacity and wit arising from 
intemperance might conceal from our view the 
loss of health, of fortune, and of reputation, to 
which improper indulgences inevitably lead ; the 
immediate safety derived from cowardice might 
appear to overbalance the distant contempt and 
future danger that result from it ; the imme- 
diate good, occasioned by an act of injustice, 
might render us blind to its injurious effects on 
other individuals and on society ; but in these, 
and similar cases, the habitual feeling at once 
rises up in our minds, and balances the false 
sentiments occasioned by hasty and partial con- 
sideration. 

The influence of general rules of conduct be- 
ing so very beneficial, we must approve of what- 
ever tends to strengthen this influence, and dis- 
approve of whatever is likely to weaken or de- 
stroy it. But as these general rules are merely 
habits of thinking formed by reiterated acts, or, 
in other words, associations between particular 
actions and certain sentiments, through which 
the former always recal the latter to our minds v 
each new decision, conformable to those we 



MORAL APPROBATION. 41 

have formerly pronounced, must increase the fa- 
cility and energy with which they recur ; whilst, 
on the other hand, every decision in opposition 
to the general rules, must retard their recur- 
rence, and weaken their powers. Indepen- 
dently of the immediate consequences of an ac- 
tion, there is, therefore, advantage in adhering 
to general rules, and evil in departing from 
them. An action will be more or less appro- 
ved of, as it shows the agent to be more or less 
actuated by a sense of duty, and as it tends to 
fortify, or undermine, this sense of duty in him- 
self and others. He who does an act of benefi- 
cence in opposition to self-interest, not only evin- 
ces benevolence by the most unequivocal of all 
testimony, and directly increases the happiness 
of his fellow-creatures, but he also strengthens 
his own sense of duty by experience of the peace 
of mind attendant on virtue, and confirms a si- 
milar sense of duty in others, by inspiring them 
with the desire of becoming, in their turn, the 
proper objects of that esteem, which they feel to 
be the result of beneficence. He, on the other 
hand, who commits injustice, not only evinces 
wicked dispositions, and occasions pain or loss 
to his neighbour, but, by breaking through the 
rules of morality, he weakens the checks' upon 



42 OF THE PRINCIPLES OF 

his future conduct, and, unless lie be punished, 
he allures others to similar crimes, by the exam- 
ple of the attainment of his own desires through 
injury to his fellow-men. Even when an action 
is immediately productive of good, its tendency 
to counteract the habitual sentiments of man- 
kind, and to weaken those general principles in 
which the welfare of society is so nearly interest- 
ed, may excite disapprobation instead of praise. 
Thus a compulsory exchange, though beneficial 
to both parties, would be reprobated ; its ten- 
dency being to overturn the important princi- 
ple, that each man ought to be allowed to de- 
termine with regard to his own interests, and to 
dispose as he pleases of his own property. 

In this manner, our moral decisions from svm- 
pathy with the motives of the agent, and the 
immediate effects of the action, are modified by 
the utility of adhering to general rules, although 
no such consideration may have entered into the 
mind of the agent, or in any respect influenced 
his conduct. 

Such are the principal views of indirect utility, 
by which the sentiments of moral approbation are 
modified or corrected. It is seldom, on the first 
view of an action, that their influence is very power- 
ful. When we behold the effects of beneficence, 



MORAL APPROBATION, 43 

struck with the generosity of the motive, and, 
warmed with gratitude towards the philanthropist 
who has diffused happiness around him, we can 
scarcely stop to enquire, whether the feeling 
which he has shown be in that precise degree 
from which the most virtuous line of future con- 
duct may be predicted, or to weigh the conse- 
quences likely to result from supporting the ge- 
neral rules of morality. Nor, when we are rilled 
with indignation at the immediate evils of injus- 
tice, do we think much of its remote, though 
destructive, effects. Some vague and general re- 
collections may cross our minds, and give addi- 
tional force to the emotions which we already 
feel ; or a remarkable opposition between our 
present sentiments and our habitual mode of 
thinking may arrest the precipitancy of our deci- 
sion. But, in general, the influence of indirect 
utility will be to correct our more lively and en- 
ergetic sentiments, after their turbulence has in 
some degree subsided. Even then, its influence, 
though it may be more steady, will in most cases 
be comparatively weak. 

1st. The sentiments excited by direct utility, 
or hurt, arise from real and certain consequences 
of the action, and are sympathies with feelings 
of gratitude, or resentment, which actually exist. 



44 OF TIIE PRINCIPLES OF 

The sentiments excited by indirect utility, or 
hurt, have their origin in our own imaginations, 
and are sympathies with gratitude and resent- 
mentj which it is only probable may afterwards 
be excited. The one has all the force of reality, 
the other all the weakness of fiction. However 
likely it may be that the motives which have 
been displayed will occasion future happiness or 
misery, and that the sense of duty will be strength- 
ened or impaired by the action, still these antici- 
pations cannot be embodied like realities, nor 
exert so strong an influence upon our minds. 

2dly. Proximity in time and place has great 
effect on the vivacity of all our feelings. We are 
more elated or depressed by a pleasure or pain 
which we expect to feel to-day, than by one which, 
though more intense and equally certain, is at 
the distance of a month ; and an event, on which 
the happiness of our whole lives may depend, if 
removed to the distance of a year, will give place 
to emotions excited by very trivial occurrences. 
Our sympathies follow the same rule. We feel 
more for him who has just suffered a slight dis- 
appointment, than for one, who we foresee will 
be rendered miserable at a future day ; and for 
the same reason, while we enter warmly into all 
the political transactions of later times, those of 



MORAL APPROBATION. 45 

more remote periods, however important, are 
comparatively uninteresting. 

In like manner, we participate more readily in 
the feelings of those around us, than of such as 
are at a distance. The burning of a house in our 
own vicinity interests us more than the confla- 
gration of a village in Germany, and the sudden 
death of our neighbour inspires more horror than 
the massacre and torture of the inhabitants of a 
different region. 

But direct utility is usually discernible imme- 
diately, or at least at no very distant period, and 
in the vicinity both of the agent and spectator ; 
while indirect utility is connected with neither 
by any defined time or place, but seems diffu- 
sed over unlimited space, and unassociated with 
any particular time, person, or object. 

3dly. The effort requisite to conceive the fu- 
ture consequences of a motive, or an action, 
must of itself diminish the vivacity of the senti- 
ments which arise from views of remote utility. 
From the limited nature of the human mind, 
whatever distracts the attention weakens the 
force of our emotions. We are affected in a 
slighter degree by distress diffused over many 
persons unconnected with each other, than with 
that which is confined to a single family. When 



46 OP THE PRINCIPLES OF 

the number of sufferers is great, and they are as- 
sociated in nothing but misfortune, so much at- 
tention is requisite to fix the whole in the me- 
mory, the mind finds it so difficult to pass from 
one to another, and the current of sentiment is 
so broken and interrupted at each transition, 
that the vivacity of the feeling is lost in the ef- 
fort requisite to comprehend the extent of the 
evil. Direct utility gives rise to sentiments con- 
fined to a few persons usually connected by va- 
rious associations, and if it occasionally suggest 
different or opposite views of the action, they are 
neither in any great number nor very dissimilar in 
kind. But indirect utility has reference to an im- 
mense number of persons wholly separate and dis- 
tinct, while it suggests great variety of views both 
of the motives and consequences, among which 
it is often difficult to select the most important. 
The attention is thus distracted, the apprehen- 
sion less distinct, the effort to retain and exa- 
mine and appreciate all the remote effects labo- 
rious ; and the sentiment, resulting from so many 
and such discordant views, proportionally weak. 
But although indirect utility is less powerful 
in forming our moral sentiments, than the im- 
mediate consequences of the action, and the 
propriety of its motives, it is by no means un- 



MORAL APPROBATION. 47 

important. When in unison with the emotions 
occasioned by direct benefits or injuries, it in- 
creases our feelings of the merit or demerit of 
the action ; when opposed to them, it weakens, 
and sometimes overcomes, our desire of reward- 
ing or of punishing the agent ; and occasionally, 
if the immediate good or evil be trivial, and the 
general rule important, it may even reverse our 
rash and partial judgments.* 

A short review of our chief duties will exem- 
plify, in the most satisfactory manner, these prin- 
ciples of moral approbation, and enable us to 
judge whether the sentiments of mankind are, 
in every respect, consistent with that system 



* Mr Hume's system ought to be considered as an essen- 
tial part of that of Dr Smith. The first of these writers esta- 
blished the influence of utility in dictating our moral judg- 
ments, but made no distinction between that direct utility 
which is in the contemplation of the agent, and the more in- 
direct consequences which follow unintentionally from his ac- 
tion. Dr Smith traced the influence of utility on our moral 
sentiments to sympathy with the feelings of the person afFect- 
ed by the action, and explained that other sympathy with the 
motives of the agent, without which it would be difficult to 
account for the high estimation of the personal virtues. Had 
Dr Smith marked more distinctly the difference between di- 
rect and indirect utility, and indulged more sparingly in elo- 
quent, but inaccurate, illustration, his book would have been 
exempted from those misconceptions that have furnished the 
most popular objections to his system. 



48 OF THE PRINCIPLES, &C. 

which has now been explained. Such a review 
will, at the same time, be a useful preparation 
for the speculations in the science of politics, 
which form the subject of the following Trea- 
tise. 



? 



CHAPTER II. 

Of the Nature and Degree of Approbation be* 
stowed on the several Virtues* 

Some of the virtues have a direct reference to 
the agent himself, tending immediately to in- 
crease his own happiness, and only remotely to 
improve the condition of his neighbours : Others 
have an immediate reference to his neighbours, 
and affect his own happiness only by procuring 
for him self-approbation, and the affection of his 
fellow-creatures. Hence the virtues are divided 
into two great classes, the Personal, and the So- 
cial. 



SECTION I. 

Of the Personal Virtues, 

The personal virtues were by the ancients re- 
duced to three ; Prudence, by which, avoiding 
precipitation, we attend to all the consequences 
of actions, and chuse those means which are most 

vol. i. » 



50 OF THE APPROBATION BESTOWED 

likely to accomplish our ends : Temperance, by 
which we refrain from present enjoyment, when 
it would* either deprive us of greater future en- 
joyment, or subject us to future pain : and For- 
titude, by which we submit to present pain, when, 
by so doing, we can escape greater future pain, 
or ensure future advantage. 

The object of all these virtues is evidently 
self. They tend immediately and directly to in- 
crease the happiness of the agent, by preventing 
him from disregarding his real interests through 
carelessness, or from sacrificing them to present 
gratification or dread of present pain. They, no 
doubt, enable him also to increase the happiness 
of others, to a degree which, if he were impru- 
dent, intemperate, or cowardly, would be beyond 
his power, But this consequence, being depend- 
ent on their combination with the social vir- 
tues, is merely adventitious. In a man actuated 
by malevolence or injustice, far from being ser- 
viceable to mankind, the personal virtues, by 
extending his power of doing evil, are prejudi- 
cial. 

I. Prudence is approved of by the spectator, on 
whom all the circumstances of the action make 
that impression which the agent has shown to 
have influenced his conduct. However rash we 
may be in our own behaviour, we are all suffici- 
ently prudent when examining that of others. 
We estimate the various means which might 
have been chosen with perfect impartiality, un- 



ON THE SEVERAL VIRTUES. 51 

biassed by those associations which may have 
existed in the mind of the agent, or by those 
casual occurrences which may have given to 
some particular view a false importance. Nor, 
in judging of the conduct of others, are we un- 
der the influence of that restless and impatient 
desire, which, in our own affairs, is so apt to 
blind the judgment, and to represent 'all means 
of attaining the objects of our wish as agreeable 
and certain of success. When, on examining 
the behaviour of another, we see that, even in 
the hurry of action, he has taken the same cool 
and deliberate view of all the circumstances, 
that he has given to each its just importance, and 
has acted as we think that, in a similar situation, 
we should have done, we necessarily approve of 
his conduct : And when we reflect on the many 
examples of rashness and inadvertency, which 
are continually occurring in the world, particu- 
larly when we know that some of the circumstan- 
ces were placed in a seducing light, or that such 
a degree of passion was excited as usually mis- 
leads the judgment, we occasionally applaud. 
But, in general, the peculiar incitements to er- 
roneous judgment and rash actions being en- 
tirely unknown to us, the coincidence between 
our own sentiments and those of the agent seems 
so natural, that, occasioning no surprise, it ex- 
cites no very lively emotion. 

On the other hand, when the action has arisen 
from partial considerations, from peculiar associa- 



52 OF THE APPROBATION BESTOWED 

tions of which we have no idea, from impatience 
that hurries forward by whatever means to the 
proposed end, or from imbecility which can nei- 
ther combine separate measures, nor compare 
opposite views \ in such cases, the unexpected- 
ness of the contrast between our sentiments and 
those of the actor renders our disapprobation 
very strong ; while the folly, from which the 
action seems to have proceeded, adds to our re- 
prehension a considerable portion of contempt. 

The natural consequence of prudence is suc- 
cess, of imprudence, failure and disappointment: 
from neither does there arise any inclination to 
punish or reward. If the end be not virtuous, 
success may be hurtful, and failure beneficial ; 
and, therefore, gratitude or indignation, if at all 
excited, is to be ascribed rather to the utility or 
hurtfulness of the object in view, than to the de- 
gree of prudence shown in its attainment. 

The anticipated consequences of prudence are 
the power of being useful on future occasions to 
ourselves, our friends, and perhaps our country, 
and consequently approbation of a quality from 
which such beneficial effects may flow. It is true 
that prudence confers also the power of doing 
greater future mischief; but unless there be some- 
thing in the action itself to impress this view on 
our minds, it is apt to be disregarded. Mankind 
are more inclined to employ their foresight in 
procuring pleasures to themselves and others, 
than in doing evil. When under no personal 






ON THE SEVERAL VIRTUES. 5S 

temptations, too, the road of virtue appears easy 
and inviting, that of wickedness rugged and for- 
bidding ; and we rest more easily on the plea- 
sing contemplation of happiness, than on the un- 
grateful prospect of pain. If there be nothing t 
therefore, in the action itself to counteract this 
propensity, we are led to infer benefit from anti- 
cipated success, and to approve of that prudence 
by which only future success is likely to be at- 
tained. Imprudence, on the other hand, sug- 
gests the painful ideas of disappointment, of self- 
vexation, of inability to do good, and of the suf- 
fering of others from such precipitation and fol- 
ly. Viewing it in this light, and scarcely taking 
into account that the schemes so rendered abor- 
tive may perhaps be hurtful, the contempt aris- 
ing from the actual imprudence is strengthened 
by anticipations of mischief which such a habit 
is likely to occasion. 

With regard to this virtue it may be remark- 
ed, that the support of a general rule can scarce- 
ly have any share in the approbation bestowed 
upon it. The general rule is fully as much im- 
pressed upon our minds by the disappointments 
which attend precipitation, as by the success 
which follows prudence. This virtue carries its 
own reward so visibly along with it, and its ab* 
sence its own punishment, that mankind may 
draw lessons of circumspection, equally, from ex- 
perience of the consequences attending the vir- 
tue, or of those inseparable from the opposite 
vice. 



54 OF TtiE APPROBATION BESTOWED 

II. Temperance consists in a comparison of 
all the pleasures and pains likely to follow from 
an action, and in the steady rejection of present 
enjoyment which would cither deprive us of 
greater future pleasure, or entail upon us future 
pain. Being merely a just valuation of motives 
to action, without reference to the proximity or 
distance of the several objects of desire, it cannot 
fail to be approved of by the spectator, to whom 
all our pleasures and pains, in this respect, are 
equal ; while intemperance, which consists in 
the preference of a worthless enjoyment, merely 
on account of its presence, must be disapproved 
of by others, in whose minds that pleasure has 
no such recommendation. In the one case, there 
is a perfect coincidence between the feelings of 
the agent and those of the spectator j in the 
other, an evident opposition. 

But from our own conduct and that of others, 
we know that, in this respect, perfect propriety 
is not to be expected. We daily see the mere 
circumstance of the proximity of pleasures mate- 
rially increasing their power of determining the 
will 5 and, being accustomed to expect a certain 
degree of impropriety in those who are exposed 
to temptation, we learn to make allowance for 
the weakness of our nature. If, however, we 
meet with an instance of remarkable departure 
from that degree of temperance which we had 
been led to expect, whether this departure con- 
sist in uncommon power of self-command, or 



ON THE SEVERAL VIRTUES. SS 

in uncommon imbecility of mind, the surprise 
excited by the unlooked-for appearance of the 
virtue or vice raises our approbation of the one 
to admiration, and sinks our disapprobation of 
the other to disgust. 

' No one exertion of temperance perhaps will 
create any great emotion ; both because, having 
never been in a situation quite similar, we can 
form but an imperfect idea of the strength of the 
temptation which has been resisted, and because 
few pleasures which are very intense ought, 
merely on account of this virtue, to be rejected. 
If an enjoyment be anxiously desired, it is pro- 
bable that it may overbalance both the future 
pleasures from which it is likely to debar us, and 
the future pains by which it will be followed. 
Should it be our duty, notwithstanding, to re- 
frain, this must be a duty, not of temperance, 
but of beneficence or justice. A single act of 
temperance, therefore, unless it be associated 
with some other virtue, is not likely to give an 
idea of uncommon self-command. On the other 
hand, a single instance of intemperance may 
create the utmost disgust ; for, independently of 
the degrading effects of many indulgences on 
the understanding or the heart, and the difficult 
ty of conceiving the full force of a temptation 
which we have not actually felt, there is no limit 
to the degree in which an act of intemperance 
may fall below the ordinary level of human na- 
ture. The approbation of the virtue is calm com- 



56 OF THE APPROBATION BESTOWED 

pared to the warmth with which we reprobate 
the opposite" vice. Yet a continued course of 
temperance, a constant rejection of every impro- 
per indulgence, a vigilant guard over every pro- 
pensity to exaggerate the present in comparison 
with the future, is perhaps the most rare and dift 
iicult exertion of self-command. But acts of 
temperance, individually of little brilliancy, are 
disjoined and unconnected ; the imagination can- 
not group them, so that they may make a si- 
multaneous impression on the mind \ and conse- 
quently no very high admiration is excited. 

The immediate consequence of temperance is 
to increase the happinesss of the individual ; of 
intemperance to diminish it ; and those who per- 
ceive these effects naturally feel pleasure from 
the contemplation of the one, and pain from that 
of the other. But as the good or evil is entirely 
to the agent, while others are neither benefited 
by the virtue, nor injured by the vice, there can 
arise neither gratitude, nor resentment, neither 
a desire to reward, nor a desire to punish. If it 
should appear to us that, in some cases, we are 
sensible of such emotions, a little attention will 
convince us, that it is only when temperance is 
joined to beneficence^ and intemperance to cruel- 
ty or injustice. 

Every instance of temperance or intemperance 
leads us to anticipate others, and, in this way, 
our approbation or disgust is greatly increased. 
But being more sensible of the deviation from 



ON THE SEVERAL VIRTUES. 57 

the ordinary standard of mankind in the vice 
than in the virtue, our anticipations are more 
lively respecting the former, than with regard to 
the latter ; and, hence, another reason why our 
abhorrence of intemperance is much more vivid 
than our admiration of moderation or abstinence. 
There are few virtues, to the regular exercise 
of which a sense of duty is more requisite than 
temperance. It is chiefly by recollecting the 
aspect in which the enjoyment now present to 
us was viewed at another time, and by recalling 
the general rules of conduct formed by repeated 
judgments, that we can resist temptation. But 
these rules may be as fully established by expe- 
rience of the pain and regret arising from devia- 
tions, as they can be weakened by any interrup- 
tion of virtuous habit The evil, being entirely 
to the transgressor, and evidently the conse- 
quence of his transgression, will imprint the 
sense of duty strongly on his mind. Nor is the 
effect of example likely to be very dangerous to 
others. Intemperance appears so deformed, so 
childish, and even absurd, to him who is exposed 
to no temptation, that he feels little inclination 
to imitate what he can in no degree approve. 
If, however, the example be shown by one whom 
we respect, or if the intemperance be associated 
with agreeable mental qualities, or if it be consi- 
dered as a concomitant of rank and fashion, its 
consequences may be widely destructive. Thus* 
S 



58 OF THE APPROBATION BESTOWED 

the dissipation of a father frequently ruins the 
morals of his son ; thus the vivacity and wit of a 
boh vivant may seduce young men from their 
duty ; and thus the profligacy of Charles the Se- 
cond spread dissolute manners through his court, 
and thence through the nation. Even in such 
cases, our abhorrence of vice, when unsupported 
by indignation at immediate injuries occasioned 
by self-indulgence, will be satisfied with detest- 
ing the individual, without seeking to inflict pu- 
nishment on his profligacy , and accordingly, 
such laws as, from religious views, have been 
enacted to restrain immoral excesses, have al- 
ways, owing to their want of unison with the feel- 
ings of man, fallen speedily into disuse. 

III. Our sentiments respecting the virtue of 
fortitude are, in many particulars, very similar 
to those excited by temperance, though in their 
degree of intensity they are considerably differ- 
ent. Fortitude, like temperance, consists in the 
just estimation of pleasures and pains, without 
giving undue preponderance to those which are 
immediate ; and it is, in like manner, approved 
of from the coincidence between the feelings 
of the agent and those of the spectator. Allow- 
ance is also made for the ordinary weakness of 
human nature, through which the presence of 
pain exerts so powerful an influence over the 
mind ; the approbation or disapprobation being 
proportioned, not so much to the exact proprie- 
ty of the action, as to the deviations from that 




ON THE SEVERAL VIRTUES, 59 

ordinary degree of the virtue, which experience 
had led us to anticipate. 

The standard of this virtue, accordingly, varies 
in different states of society ; being placed in 
some at a very high, and in others at a very low, 
degree. The savage, whose life has been a con- 
tinued struggle against danger and privations, 
who is inured to every vicissitude and every 
pain, whose rugged breast has seldom sympathiz- 
ed with others, and who has as seldom experi- 
enced the consolations of pity from his fellow- 
men \ a being trained in this hard school of suf- 
fering and adversity will contract an insensibili- 
ty to the menaces of pain, which at once dimi- 
nishes his admiration of fortitude, and increases 
his contempt of every symptom of weakness. 

In civilized society, however, aversion to pain 
is found to sway the will much more powerfully 
than the love of pleasure. Suffering, which 
seems trifling when distant, cannot approach 
without appalling us. We may all talk, and 
even feel, very philosophically respecting the 
pains of the body, the loss of fortune, the disap- 
pointment of ambition, even the termination 
of life, while these calamities are remote ; but 
get them face to face with us, and the boldest 
will shrink. Accordingly in civilized nations, 
the point of expected propriety is placed lower 
in fortitude, than in temperance. A considera- 
ble degree of caution, even some degree of tre- 
pidation in real danger, is but slightly blamed > 



60 OF THE APPROBATION BESTOWED- 

and pusillanimity, though it excites derision, oc- 
casions little dislike, and no abhorrence : while, 
on the other hand, a high exertion of active cou- 
rage, or of that fortitude which amid tortures 
disdains complaint, is received with acclama- 
tions of applause. 

Nor is the admiration bestowed on an act of 
fortitude much increased by several successive 
exertions of the virtue. A series of courageous 
efforts will, no doubt, be more highly admired, 
than any ordinary or unimportant act of valour ; 
but in contemplating an illustrious instance of 
self-command, whatever would distract the mind, 
or fix the attention on less important transac- 
tions, must weaken, rather than increase, the in- 
tensity of the emotion. In such circumstances, 
the mind is too much hurried away to reckon 
up and add together a number of less interesting 
occurrences ; it, is too much elevated by one 
great and splendid feeling, to stoop to others of 
lower origin or inferior lustre. There is, how- 
ever, one very important addition even to the 
highest admiration which the most elevated act 
of heroism can inspire. It has been remarked, 
that our emotions and our imaginations are so 
intimately connected, that whatever exalts the 
one gives unusual vivacity to the other.* Under 
the influence of high admiration, our minds dart 

* See Hume's Treatise on Human Nature, Book II. Part 
III. Sec. VI.; or his Dissertation on the Passions, Sec, VI. 9. 



ON THE SEVERAL VIRTUES. 61 

into futurity, imagining, with a force and liveli- 
ness little short of reality, acts of heroism still 
more sublime : hurried on by the illusion, we 
ascribe these imaginary actions to him who has 
already so far surpassed our expectations ; our 
emotions and our imagination invigorate each 
other, and our feelings rise to the highest rap. 
ture of which man is susceptible. Who, in such 
a state of mind, can attend to mere utility, whe. 
ther immediate or remote ? 

But when our emotions have had time to 
subside, and our attention is directed to the 
consequences of that action whose grandeur had 
enraptured our minds, we must perceive that 
these consequences, except in so far as genero- 
sity or benevolence may have been joined to 
fortitude, are entirely confined to the agent him- 
self, securing to him the greatest degree of hap- 
piness which it was possible for him to attain. 
In this, there is no call for gratitude ; nor, in the 
pusillanimity which has sacrificed much distant 
good to the escape from present pain, is there 
any circumstance to excite the indignation of 
mankind. 

In particular cases, indeed, the consequen- 
ces of cowardice are so immediately hurtful to 
others, that in such instances this vice has been 
very severely punished by the laws. If through 
pusillanimity an army has been routed, and 
slaughter and dismay have combined to over- 
whelm the nation j or if imminent danger of such 



()2 OF THE APPROBATION BESTOWED 

evils has been ereated ; the resentment of the 
sufferers rises too high to be disarmed by the 
plea that none of those disasters were intended 
by the culprit. The general voice demands 
atonement for the loss and disgrace which cow- 
ardice has occasioned, and policy, with the view 
of balancing the fear of death by the fear of pu> 
nishment, confirms, and usually aggravates, the 
sentence. But the punishment of cowardice, be- 
yond the exposure of the culprit to scorn and 
contempt, is repugnant to the feelings of the 
spectator. That is generally pitied which is 
considered as a natural weakness, rather than a 
crime ; and the sentence, defended only on the 
plea of necessity, is executed amidst the commi- 
seration pf bye-standers. However much cow- 
ardice may be despised, however disastrous 
its consequences may be to a nation, no consi- 
derations of this nature can induce us to class it 
with those crimes of which injury to others is 
the immediate object, and which, on that ac- 
count, excite an indignation that only punish* 
ment can appease. 



ON THE SEVERAL VIRTUES. 63 



SECTION II. 

Of the Social Virtues. 

There are two ways in which the actions of 
one person may affect the happiness of another. 
They may increase, or they may diminish it. 
Accordingly, the social virtues, whose immediate 
object is the welfare, not of the agent, but of his 
fellow-creatures, may be divided into two great 
classes ; the beneficent virtues, which tend di- 
rectly to promote the happiness of others ; and 
justice, which forbids whatever might detract from 
their enjoyment. 

There is a third class of a mixed nature, par- 
taking both of beneficence and justice, which, 
though ultimately resolvable into these virtues, 
it may be more convenient to consider apart. 

I. Even in beneficence, the most amiable of 
the virtues, propriety is an essential quality. Al- 
though a man may have conferred benefits on 
thousands, if his conduct were guided by folly, 
or dictated by caprice, if the action appear dis- 
propprtioned to the motives, if it be such, as we 
think, that, in similar circumstances, we should 
not have performed, however it may be excused 
on account of its effects, it can neither me- 



64 OF THE APPROBATION BESTOWED 

rit approbation, nor claim any title to the appel- 
lation of virtue. 

In like manner, the refraining from an exercise 
of beneficence, though in general it be merely 
tolerated, may in particular situations be virtu- 
ous. If, in doing an act of kindness, the agent 
must have subjected himself to much inconveni- 
ence, to serve one, who had neither particular 
claims on his good offices, nor any very urgent 
want of his services ^ still more, if he must ha ve 
deprived himself of the power of assisting others 
who, though neither more needy nor deserving, 
held a higher place in his affections ; in such 
a case, feeling that we should have acted in the 
same manner, we approve of his refusal. 

It is seldom, indeed, that the omission of be- 
neficence, is, in itself, entitled to direct appro- 
bation : but from experience of ourselves and 
others, it frequently meets with indulgence. We 
soon learn to estimate the strength of the selfish 
propensities of mankind, and become aware of 
their influence in preventing those acts of kind- 
ness which to others appear natural and proper. 
Being accustomed to make allowance for such 
imperfections as experience has taught us to ex- 
pect, we rest satisfied with the ordinary degree 
of coincidence between our sentiments and those 
evinced by the agent. Propriety more perfect 
than this general standard, we approve ; and if, 
requiring a high exertion of generosity and self- 
command, it greatly exceed it, surprise may raise 



ON THE SEVERAL VIRTUES. 65 

our admiration tp ,the highest applause. If, on ' 
the other hand, there be less propriety than we 
had anticipated, our disapprobation may, accord- 
ing to the circumstances of the action, become 
dislike, contempt, or detestation. 

Passing from the motives to the consequences 
of a beneficent action, observing the immediate 
good resulting from it, and sympathizing with 
the gratitude of those, whose happiness has been 
increased, we feel pleasure from the action, af- 
fection for the agent, and that desire of reward- 
ing him which constitutes the sense of merit. 

These strong feelings of admiration and grati- 
tude are rendered still more powerful by antici- 
pations of future generosity, and future benefits ; 
anticipations impressing our minds almost with 
the force of realities, by their exact resemblance 
to the scene which engrosses our attention, and 
by that state of activity into which our imagina- 
tion is always thrown by intense emotions. Our 
applause is not only of the present, but of fu- 
ture, exertions of the benevolent affections ; our 
gratitude is not only for the present, but for the 
future, acts of kindness, which our heated imagi- 
nation represents as scarcely less certain, and 
much more important, than those benefits which 
have actually been conferred. 

While under the influence of sentiments so 
energetic, it is unlikely that we should pay much 
attention to the advantage that may be derived 
from strengthening the disposition to beneficence 

VOL. I. e t • 



66 OF THE APPROBATION BESTOWED 

in the minds of others. It is true, that every 
spectator of generosity must feel in his bosom a 
love and admiration of goodness, which will for- 
tify his virtuous resolutions. But such conside- 
rations are too general, too calm, too indefinite, 
to be listened to during the fervour of applause 
or the melting of gratitude. Nor are they sug- 
gested to the mind, by any striking resemblance 
either to the motives, or to the immediate conse- 
quences, of beneficence. If we suspected the ac- 
tion to proceed from attention to general rules, 
it would lose in our eyes much of its merit. 
Should we learn that the man whom in our fancy 
we had painted, as softened with pity, delighted 
with the view of that happiness which he created, 
and elevated by a generous victory over his self- 
ish feelings, had been influenced merely by ha- 
bit, by abstract maxims, or by a nice balance of 
contingent results, our admiration would quickly 
subside, and our gratitude would cease to occu- 
py or interest our affections. It is surely impro- 
bable that a consideration, which in the agent 
would tarnish the lustre and detract from the 
graces of his action, should increase the emo- 
tions excited by his behaviour in the bosom of 
the spectator. 

The consequences of a selfish refusal to pro- 
mote the happiness of others, are rather of a ne- 
gative than a positive kind. After the most un- 
feeling rejection of a petition, matters are exact- 
ly in the same state as before the request was 



ON THE SEVERAL VIRTUES. 67 

made. He who stood in need of assistance is 
neither poorer, nor in greater pain, nor less re- 
spected, than if he had never made the applica- 
tion ; nor is he in a worse condition, than if the 
man, who so unfeelingly refuses his petition, ne- 
ver had existed. However unexpected, there- 
fore, the disappointment may be, however odi- 
ous the refusal, even he who hoped for relief, hav- 
ing suffered no injury, has no ground for that 
resentment which would lead to the infliction of 
punishment. The spectator may be disappoint- 
ed of the pleasure which he had anticipated from 
the view of happiness and of gratitude, and this 
disappointment may strengthen his dislike of the 
person, whose ungenerous feelings he contem- 
plates with aversion ; still, as no real injury has 
been done, no real evil created, there is no room 
for that indignation which is the reflection of re- 
sentment. Nor in the prospect of the future con- 
duct of him whose character is deficient in be- 
neficence, is there any circumstance which can 
raise such indignation. A course of behaviour 
may be predicted which will merit reprehension, 
and incur contempt; the anticipation of unkind- 
ness, meanness, and hardness of heart, may ex- 
cite disgust ; but without going beyond the case, 
there can be no reason to foretell direct injury 
to any one, and where there is no injury there 
can be no punishment. 

That every departure from beneficence weak- 
ens one of the most essential rules of morality in 



(>8 OF THE APPROBATION BESTOWED 

the mind of the agent, and at least, prevents in 
the minds of others those kind resolutions which 
might have sprung from the contemplation of 
the happiness, gratitude, and self-satisfaction, 
created by benevolence, may, at some future pe- 
riod, increase our disapprobation j but such views 
are not likely to have any powerful effect, while 
we are surprised and disgusted at the unexpect- 
ed prevalence of selfish feeling, and grieved by 
the sight of distress which we cannot relieve. 

Such considerations of the distant and uncer- 
tain effects of an action can never prompt a de- 
sire of inflicting pain. Nor indeed, can we be 
so certain of the impropriety of the action, as to 
be free from the risk of punishing what may not 
even be deserving of blame. The rules of benefi- 
cence are lax in their nature and uncertain in 
their application. Before we can positively assert 
that they have been disregarded, we must consi- 
der the abilities of the agent, the state of his 
connections and friends, the other claims of hu- 
manity or affection, which may be more power- 
ful though not immediately present, the charac- 
ter of the person in distress, and the probability 
of his being relieved by others more nearly con- 
nected with him by friendship or by birth. How 
is the spectator to find his way in this labyrinth ? 
How is he to weigh all these circumstances, so as 
to decide with certainty that the action ought to 
have been performed, or that it should be enfor- 
ced ? When our disapprobation is merely attend- 



ON THE SEVERAL VIRTUES* 6£) 

ed by dislike, we judge from the circumstances 
which fall within our knowledge, and no evil 
thence arises which cannot be removed on bet- 
ter information : but if we were called upon to 
inflict punishment, we should feel it our duty to 
pause till we were made acquainted with all the 
most minute circumstances of the case. Neither, 
therefore, are we inclined to punish a want of 
beneficence, which, producing no direct evil, oc- 
casions no resentment, nor if, for the sake of 
example, we were so inclined, could we satisfy 
ourselves that we were not committing an act of 
injustice. The science of casuistry, which under- 
took to lay down rules of beneficence applicable 
to a variety of circumstances and situations, has 
become a generic name for that subtility of dis- 
tinction which, unfounded in the nature of things, 
leads only to perplexity and error. 

II. Where justice is concerned, the most strict 
propriety is required by the spectator. To him 
the interests of both parties appear equally im- 
portant; and although he may make some al- 
lowance for that selfishness which prevents a 
man from sacrificing his own wishes or pleasures 
to the welfare of others, he can have no indul- 
gence for the greater degree of this vice which 
would induce him, through injury to his neigh- 
bour, to seek his own advantage. Every instance 
of such self-partiality is reprobated by those who 
are neither blinded by passion, nor misled by in- 
terest ; and the point of expected propriety is 



70 OF THE APPROBATION BESTOWED 

placed so high, that an act of mere justice, ex- 
cept under very particular circumstances, scarce- 
ly calls forth applause. A life of steady, accu- 
rate, and persevering justice, during which no 
unfair advantage of any kind has been seized, 
may perhaps require a degree of self-command, 
beyond that which is requisite to the exercise of 
the more splendid virtues. But, in such cases, 
each exertion being of little difficulty in itself, 
and there being nothing to mark the frequent 
recurrence of the virtue, there is nothing to 
affect the imagination, or to enliven the emo- 
tion. Accordingly, if mere justice be ever ap- 
plauded, it is only when positive institution has 
appeared to permit whatever is not directly pro- 
hibited j and when, in consequence of this, what 
is really of strict obligation puts on something 
of the appearance of generosity. In such cases, 
experience convinces us that a majority of man- 
kind will consider themselves as absolved from 
all obligations, except those enforced by law^ 
our expectations of strict propriety will conse- 
quently be lowered ; the usual degree of moral 
imperfection will meet with some indulgence, 
and a rigid adherence to the dictates of justice, 
when purely voluntary, may excite some degree 
of admiration. 

The sentiments to which the immediate con- 
sequences of justice give rise are equally calm 
and moderate. The tendency of this virtue is 
not to confer happiness, but to prevent injury j 



ON THE SEVERAL VIRTUES. 71 

not to increase enjoyment, but to hinder the de- 
struction of that degree of welfare which already 
exists. After the most signal act of justice, every 
thing remains as before ; no one is rendered hap- 
pier, no distress is removed. There is here no 
room for gratitude, which is excited by benefits, 
but which never seeks to reward mere forbear- 
ance. In society, indeed, where the unavoida- 
ble imperfections of law permit many immoral 
and some unjust actions, the refraining from 
these may assume somewhat of the character of 
beneficence. He who renders a just account of 
a trust unknown to the world ; the debtor who, 
after having obtained a discharge, pays those 
debts from which by law he is freed ; he who 
releases another from a legal obligation contract- 
ed in ignorance or folly : whoever acts in this 
manner, while he displays a nicer sense of honour 
than our general experience of mankind had led 
us to expect, may, at the same time, excite gra- 
titude in the breast of the individuals whom he 
leaves in possession of those means of enjoyment, 
of which they might have been legally deprived. 
In considering the line of future conduct 
which is likely to result from the motives evinced 
by a just action, we can merely infer that the 
agent will not be apt to give such undue pre- 
ference to his own interests, as to subject those 
around him to injury. So far it is well ; we 
give him credit for the propriety of his future ac- 
tions, and feel satisfaction in the exhibition of 



72 OF THE APPROBATION BESTOWED 

an innocuous character. But there is joined to 
these feelings no anticipated gratitude ; for the 
action evinces no sentiments from which future 
acts of kindness can be inferred ; or, if it should 
exhibit that delicate sense of justice, which seems* 
in one point of view, to confer something resem- 
bling a benefit, the occasions for its display so 
rarely occur, and its consequences are usually so 
unimportant, that it can give occasion to no very 
lively emotion, 

The approbation merited by justice seems, 
then, to arise principally from the support which 
every instance of this virtue affords to a most 
important rule of conduct. This rule is not, as 
in beneficence, indefinite in its extent, or diffi- 
cult in its application. To abstain from injury 
is a maxim clear in its import, and independent 
of all contingent circumstances. Its influence in 
regulating our behaviour is, at the same time, 
most salutary. If strengthened by undeviating 
observance, it occurs to our minds even when 
objects are the most distorted by passion, and 
rouses by its habitual force our sense of a para- 
mount duty. That our conduct, in a difficult 
situation, evinces the influence of so salutary a 
principle, that it tends still farther to impress 
the great rules of justice on our own minds, and 
by example to fortify the virtuous resolutions of 
others, must entitle us to high approbation ; yet 
this approbation, proceeding from remote and 
less obvious views of utility, will always retain a 



ON THE SEVERAL VIRTUES. 73 

calmness and composure unlike the enthusiastic 
emotions kindled by beneficence. 

If we attend, however, to the sentiments exci- 
ted by an act of injustice, we shall find them un- 
usually lively and energetic. When, from mo- 
tives evidently selfish and improper, a man refu- 
ses to pay a debt which he has contracted ; when 
he defrauds another of his property, or seizes it 
by force ; when he outrages him in his person, 
or detracts from his character ; in all these ca- 
ses, positive injury is done, the condition of the 
sufferer is rendered worse than it formerly was, 
and a feeling of resentment is excited with which 
every bye-stander sympathizes. To this is added, 
in the mind of every one connected with the cri- 
minal, or living in his vicinity, an apprehension 
of future offences endangering their personal 
safety, and in the minds of others, an indig- 
nation at crimes which principles so depraved 
are likely to occasion. Such anticipations of in* 
justice, suggested by actual crimes and actual 
sufferings, sometimes carry theindig nation of 
the spectator even beyond the resentment of 
the sufferer. The paramount necessity also of 
causing the rules of justice to be regularly ob- 
served cannot fail to give both strength and 
permanency to these sentiments. The perso- 
nal virtues may be neglected without bringing 
suffering upon others ; beneficence may be dis- 
regarded, not indeed without preventing pos* 



74 OF THE APPROBATION BESTOWED 

sible happines, but without occasioning addition- 
al distress; but justice is the key-stone of socie- 
ty, the removal of which would at once crush to 
atoms human industry, and human enjoyments. 
When a virtue, so essential to private security 
and public tranquillity, is either insidiously or 
openly attacked, the obvious necessity of sup- 
porting the general rule, and of proving that no 
personal advantage can ultimately arise from 
crimes, interests every spectator in the attempt to 
repel aggression, or, if this be impossible, to inflict 
a degree of punishment sufficient to make the ag- 
gressor repent of his injustice, and to deter others 
from similar enterprises. In inflicting this pu- 
nishment, no difficulty can arise from the circum- 
stances of the case. To determine his conduct, 
the bye-stander has merely to satisfy himself that 
the one party seeks to promote his own advan- 
tage by injuring the other. He at once perceives 
that such attempts are improper, injurious to an 
innocent individual, and dangerous to society. 
Hence the introduction and province of law, 
which aims, not at inspiring virtue, but at repress- 
ing one species of vice, the existence of which 
has been proved by actual aggression, and its 
demerit, sometimes by the alarm, and always by 
the indignation, of the neighbourhood. 

III. There are some virtues which partake of 
the nature both of beneficence and of justice j 
and holding a middle place between them, seem 
to create obligations more strict than the one, 



ON THE SEVERAL VIRTUES. 75 

and less precise than the other. These duties 
which, though their neglect excites the strongest 
sentiments of disapprobation, are but partially, 
if at all, enforced by human laws, arise chiefly 
from gratitude, and from the filial and parental 
relations. 



1. Duties arising from Gratitude. 

There are many circumstances which raise the 
obligation of assisting a benefactor, much higher 
than that of conferring a favour on any other 
person, and which consequently diminish our 
admiration of a grateful return for former kind- 
ness, while they increase our disapprobation of 
ingratitude. He who has shown merely an in* 
clination to befriend another, has at least evin- 
ced a degree of good- will, the ordinary effect of 
which is to produce a similar feeling of kindness 
in his friend. The experience of this reciproci- 
ty of good-will makes, us expect considerable 
readiness to assist a benefactor ; less allowance 
is made for that selfishness which so frequently 
opposes itself to beneficence ; and the degree of 
propriety which experience has led us to expect 
being more perfect, our disappointment at the 
discovery of a want of gratitude is greater, and 
our disapprobation more lively. 

In ordinary cases, too, the disposition to do a 
service will have produced some increase of hap. 



76 OF THE APPROBATION BESTOWED 

piness to the person who is the object of the 
kindness ; and that this should occasion no re- 
turn of good-will, no reciprocal desire of adding 
to the happiness or alleviating the pains of a be- 
nefactor, is so very improper, so unusual, and 
consequently so unlooked-for, that it cannot fail 
to excite the highest disgust. 

When, in addition to this, the benefactor has 
relinquished some of his property, or sacrificed 
part of his time, he has suffered a loss by his be- 
neficence, which the other party seems almost 
bound in strict justice to repay, and which, had 
it been demanded of him, he would readily have 
come under a formal obligation to compensate. 
In one point of view, a real injury may thus 
seem to spring from ingratitude ; but as the be- 
nefactor had, of his own accord, trusted for his 
recompense to the feelings of gratitude, or ra- 
ther as he had conferred the benefit without any 
view to remuneration, the injury which he suf- 
fers is not so direct, as if he had been deprived 
of his property, of his time, or of the fruits of his 
talents, without his own consent. Neither is the 
injury so well defined. In many cases, it is ima- 
ginary, consisting altogether in the disappointment 
of his feelings ; sometimes it is of little import- 
ance, the expected return not being essential to 
his welfare ; occasionally, on the other hand, it 
may ruin his fortunes, and extinguish his hopes. 
These consequences of ingratitude, though they 
would make an essential difference in the duties 



ON THE SEVERAL VIRTUES. 77 

of the one party, could scarcely affect the direct 
claims of the other ; for having been in the con- 
templation of neither at the time the obligation 
was incurred, they could have no influence in 
prompting those sacrifices for which a compen- 
sation is demanded. Our detestation of ingrati- 
tude may, therefore, be stronger than that of in- 
justice, but our resentment of the evils which it 
occasions, or rather which it refuses to mitigate, 
will always be comparatively weak. 

Nor is the virtue of gratitude, like that of jus- 
tice, capable of being reduced to a precise rule, 
which is independent of accidental circumstan- 
ces. Were we to endeavour to enforce its obser- 
vance, the difficulties Would be insurmountable. 
Ought the return to be of a different kind from 
the benefit conferred? How much ought the 
one to exceed the other in degree ? At what 
particular time ought the return to be made? 
On each of these and many other questions that 
might be started, there would be room for an 
investigation of the motives, pecuniary circum- 
stances, connections, and prospects of both par- 
ties, equally intricate, oppressive, and unsatis- 
factory. He who wishes to do his duty will sel- 
dom be at any loss with regard to its nature 
and extent ; but in seeking to regulate the con- 
duct of others, unless directed by the firm-drawn 
line of justice, we involve ourselves in perplexi- 
ties, from which no attention or talents can ex- 
tricate us, and in the vain attempt to compel to 



78 OF THE APFItOBATION BESTOWED 

virtue, we should rarely escape the commission 
of a crime. 



2d. — Duties from the Filial Relation, 

The claim of a father to the respect and ser- 
vices of his children, is partly founded on the 
affections springing from habitual intercourse, 
partly on the most clear and indispensable duties 
of gratitude. 

The reciprocation of minute but frequent tes- 
timonies of affection between members of the 
same family, their intimate connection, their 
common interests, all tend to excite a strong at- 
tachment, which inclines them mutually to assist 
each other's pursuits, and to exert themselves to 
promote each other's happiness. The habits, too, 
of respect, which a son contracts towards his fa- 
ther, habits springing from the early helpless- 
ness of his condition, and strengthened by daily 
experience of his inferiority in wisdom, know- 
ledge, and power, accustom him to bend his 
own opinions and wishes, to those of one who, 
in every occurrence of life, is so much better 
qualified to decide what is right or advantage* 
ous. Hence, a general deference to the opinions 
of the head of the family, a sacrifice of every 
desire that may be opposed to his wishes, and 
still more, a renunciation of such as may be in- 
consistent with his welfare. The absence of sen-. 



ON THE SEVERAL VIRTUES, 79 

timents, thus imprinted by habit and kindness, 
gives rise to strong feelings of dislike ; while the 

contemplation of a character so deficient in the; 
tost natural and amiable affections, cannot fail 
to suggest many anticipations of selfish disregard 
to the happiness of every fellow-creature. 

Besides, a son must be sensible of powerful 
claims on his gratitude, when he recollects the 
numerous indulgences which have been granted 
by his father, and the many instances of atten- 
tion to his happiness, which, as acts of strict pa- 
rental duty, he had no title to demand. His fa- 
ther has probably denied himself many comforts 
to add to his enjoyments ; and that he should, in 
his turn, subject himself to some inconvenience 
on his father's account, seems merely the re- 
payment of a debt contracted in his youth. Were 
he to refuse assistance to his parent when in want, 
the unexpectedness of such misconduct would 
excite our utmost detestation, and we should 
scarcely appear to exceed the limits of justice, 
in compelling him to make compensation for 
those sacrifices, which, having been intended for 
his welfare, he must have known, that, if neces- 
sary, he is expected to repay. Accordingly, in 
Athens, a son was obliged by law to maintain 
his father ; a similar regulation was by statute* 
enacted in England ; and the same duty is com- 

* 43d Eliz. c. 2. 



80 OF THE APPROBATION BESTOWED 

pulsory by the common law of Scotland. * But 
as a law of this kind cannot be justly enforced 
without a previous enquiry into the wealth of 
the son, and the degree of obligation which he 
lies under to his parent, it is probably better to 
leave the sanction of this great moral precept to 
the feelings of mankind, which will, brand with 
indelible infamy, every notorious instance of its 
infringement. 



3d. — Duties from the Parental Relation. 

The helpless state of an infant naturally calls 
forth the humanity of those who have brought 
it into the world, on whose mercy it seems pecu- 
liarly to be thrown, and whose affections it so 
strongly interests. The habit of providing for a 
child, of attending to its little comforts, of en- 
tering into its infantine pleasures, strengthens 
the affection of the parents, and renders the hap- 
piness of their child as dear to them as their own. 
No allowance, therefore, is made by mankind for 
any such selfishness, as might lead a father deli- 
berately to prefer his own gratification to the 
support of his children, and when an instance of 
such depravity occurs, it is marked with the most 
unqualified reprobation. 

To a certain degree, the duty of parents is even 
an obligation of justice. After bringing into the 

* Erskine's Inst. Book I. Tit. VI. 57. 
5 



ON THE SEVERAL VIRTUES. 81 

world, a being unable to maintain himself, to 
refuse to grant him that assistance, without which 
he must perish in misery, or to endeavour to 
throw upon others a charge arising from the vo- 
luntary act of the parents, is either to do a po- 
sitive injury to the child, or to transfer to others 
an expence which the parents only are bound to 
defray. But a father can have no right to inflict 
unmerited misery on his child, or to render any 
of his fellow-citizens tributary by the mainte- 
nance of his offspring ; and consequently in eve- 
ry country, the law, by awarding the necessaries 
of life to a child from the property of its parents, 
interferes as far as seems requisite to prevent in- 
justice. 

Beyond bare subsistence, there is no doubt a 
claim, nearly as strong in itself, though more dif- 
ficult to be reduced to any general rule, A son 
who has been brought up in affluence, who has 
not been instructed in a profession by which he 
can gain his livelihood, nor led to foresee any 
necessity for his own exertions, if, without cause, 
he be thrown off by his father, suffers an injury 
much more grievous, than if, in his infancy, he 
had been allowed to perish for want. In such a 
case, the law of Rome interfered, and referred 
the case to the consideration of the praetor, who 
was empowered to order such a provision as 
seemed to be just. In some respects the law of 
Scotland follows that of Rome, the Supreme 
Court of Justice, when the rank in life prevent* 

vol. i, f 



8& OF THE APPROBATION BESTOWED 

the daughters from going to service, ordering a 
maintenance proportioned to the opulence of the 
parent.* In doing so, however, it is requisite to 
enter into investigations both of the circumstan- 
ces of the parent, and of the behaviour of the 
child, which must always be vexatious and often 
unsatisfactory ; and it is probably from a regard 
to the liberty of individuals, and a salutary fear 
of relaxing the parental authority, that the laws 
of England, though they award mere necessaries 
of life to a child, leave every farther provision to 
the natural strength of the parental feelings, and 
to the general sentiments of abhorrence excited 
by the cruel exertion of a father's power. 

In some countries, the state has proceeded still 
farther, and attempted to prevent the head of a 
family from squandering that fortune in which 
his children are conceived to have an interest, 
or the children from involving the parent in po- 
verty or disgrace. To these purposes, we are told, 
the lettres de cachet in France w r ere frequent- 
ly applied ; and, in Holland, every person was 
liable to be imprisoned by the judge on a com- 
plaint at the instance of his relations. From 
such exertions of authority, it is very unlikely 
that any good can arise. The family disputes 
occasioned or embittered by the appeal to a mi- 
nister or a tribunal, and the oppression so easily 
exercised through the carelessness or corruption 

* Diet, of Decisions — • Aliment," 



ON THE SEVERAL VIRTUES. 83 

of a judge, far overbalance any advantage which 
can be derived from occasional instances of sa- 
lutary control ; and, accordingly, the lettres 
de cachet of France have always been consider- 
ed as one of the most obnoxious practices of her 
former government. That the interference of 
the magistrate in Holland occasioned fewer com- 
plaints, probably arose from the character and 
habits of the people ; from this power being very 
rarely appealed to, from the judge shewing the 
greatest caution and reserve in interposing his 
authority, and consequently from there being few 
or no instances of a person imprisoned on the 
application of his friends, till his character was 
so completely lost, that his complaints of injustice 
met with little regard* 



BOOK I. 

OF THE CONSTITUTION OF GOVERNMENT. 



CHAPTER L 



Of the Nature and Limits of the Rights of 
Government 



SECTION I. 

Of the Natural Rights of Man. 

What has sometimes been called the natural 
state of man, a state of independence in every re- 
spect opposed to society, seems a mere fiction of 
the imagination. Man, in whatever condition he 
has been found, is a social being, whose inclina- 
tions and sympathies connect him with his fellow- 
creatures. Nor in this is he different from many 
other animals, which, herding together, evidently 
derive much of their enjoyment from mutual 
communication and reciprocal kindness. The 
protracted period of infancy, in which unceasing 
care is necessary to the existence of the child, and 



OF THE RIGHTS OF GOVERNMENT. 85 

during which other children are usually born to 
prolong the connection of the parents, gives ad- 
ditional strength to the social, and in particular to 
the family, affections. A state of nature, therefore, 
if by the term we understand a state of existence 
in total independence, being as contrary to the na- 
ture of man, as to the whole course of history and 
discovery, any investigation of the laws, by which 
the conduct of individuals ought in such circum- 
stances to be regulated, would be equally useless 
and unsatisfactory. Systems might easily be form- 
ed on a partial view of human nature ; but the 
moment that all the acknowledged qualities of 
the head and the heart were brought into view, 
the impossibility of man existing in such a con- 
dition would be apparent. 

But, although what has been called a state of 
nature cannot be admitted as having ever ex- 
isted, something resembling it may be assumed 
as a hypothesis, for the purpose of abstracting all 
considerations of custom, institution, or conven- 
tion, and of confining the attention to those 
rights of man, which, being founded on his ori- 
ginal constitution, prevail in every country, ex- 
cept in so far as they have been modified by 
particular laws or forms of government. In so- 
ciety, as now existing or recorded in history, 
many rights have been created, and some have 
been abolished, by positive law or ancient cus- 
tom. But if we would know what rights are 



86 OF THE RIGHTS OF GOVERNMENT. 

founded, not on accident or particular systems 
of policy, but in the universal and unvarying 
principles of human nature, we must remove all 
those anomalies, and confine our views to maxims 
of justice equally binding on all nations and on 
every individual. Thus only can we arrive at 
those general principles of natural law, which 
human institutions may render more precise, 
which in some respects they may modify, but 
which they can have no right to overturn. 

It has already been remarked, that the actions 
of man tend directly to satisfy the desires, or to 
alleviate the sufferings, either of himself or of 
those around him. In satisfying his own desires, 
however, he may diminish the happiness of others, 
and this result, whether intentional or unforeseen, 
forms the only natural and universal exception to 
his right of acting in whatever way he may be 
inclined. 

It has farther been remarked, that actions 
which have reference solely to the agent, may 
give rise to affection or dislike, to respect or con- 
tempt, but can scarcely justify interference, co- 
ercion, or control. Each man, in what relates to 
himself, is, by the law of nature, left entirely to 
his own guidance. He may destroy his own 
happiness and respectability, he may render him- 
self the object of contempt or hatred, without 
being liable to have his actions in any degree 
controlled. To force him to be prudent, tern- 



OF THE RIGHTS OF GOVERNMENT. 8? 

perate, or brave, is equally beyond the powers,, 
and beyond the rights, of others. His neigh- 
bours may remonstrate with him, they may show 
him how far he departs from his true interest, or, 
by shunning his society, and refusing him every 
kind or friendly office, they may make him feel 
how low he has sunk in their estimation. But 
here their rights have reached their utmost limit. 
Should they endeavour by force to prevent him 
from indulging in those vices by which they 
have not been injured, or should they inflict 
any punishment for his misconduct beyond the 
expression of their displeasure, they would be 
taking on themselves an office to which they are 
not entitled, and committing injustice. Those 
actions, then, which merely tend to promote or 
to diminish the happiness of the agent, without 
affecting that of others, are entirely discretiona- 
ry, each man, without being called to account, 
having a natural right to perform or omit them 
at his pleasure. In such instances, duties and 
rights are not correlatives. It is the duty of 
every man to be prudent and temperate; but 
this is a duty which he owes to himself and 
which gives rise to no corresponding right in 
others. 

Actions which relate to others affect them ei- 
ther by increasing or diminishing their welfare- 
In the one case, the line of conduct is discre- 
tionary, in the other obligatory. Should a man, 

8 



SS OF THE RIGHTS OF GOVERNMENT. 

supplied with every object of luxury, neglect 
the means which he possessed of diffusing happi- 
ness around him, and refuse to contribute, by 
the smallest sacrifice, to the welfare of a fellow- 
creature afflicted by want, and infirmity, and 
pain, such selfish inhumanity could not fail to 
excite our utmost abhorrence : Yet even he who 
had confidently hoped for relief would experi- 
ence grief and disappointment, rather than re- 
sentment, from the unlooked-for refusal. He 
must be sensible that what he asked was not due 
to him, but, if granted, would have laid him un- 
der an obligation of gratitude : by a refusal, un- 
accompanied by contumely, he is left exactly in 
the situation he was in before he preferred the 
request ; and though he may consider that refu- 
sal as a proof of an unamiable or even of a wick- 
ed disposition, he cannot view his own claim as 
one which he is entitled to enforce. 

If want of kindness appear in this light to him 
whose hopes it disappoints, no other person will 
be inclined to interfere otherwise than by per- 
suasion. To paint the delight arising from con- 
scious benevolence, tp express the sentiments of 
disapprobation or aversion excited by hardness 
of heart, and to denounce the general hatred 
and contempt of mankind for inordinate selfish- 
ness, is all that can be expected from the spec- 
tator. So far from assisting to extort that by 
force, which he most ardently desired to be grant- 



OF THE RIGHTS OF GOVERNMENT. 89 

cd by compassion; he would be ready to resist 
every violence which might be prompted by dis* 
appointment, or even by the severity of distress. 
Attempts to constrain what ought to flow freely 
from benevolence would at once extinguish his 
pity, and kindle within him just indignation 
against what could be viewed no otherwise than 
as an unwarrantable outrage. But if the person 
that expected the benefit feels that he has no 
right to compel it, and if the spectator would 
disapprove and resist all such attempts, the ac- 
tion must be considered as purely discretionary. 
Hence, a very extensive class of rights, which 
relate to conduct directly affecting the welfare 
of others ; rights which are bounded only by the 
obligation to refrain from injustice. 

From this natural restriction of the right of 
discretionary action, arise to the opposite party 
other very important rights ; those of self-de- 
fence, and of punishment. Every species of in- 
justice must occasion loss and injury to him who 
is its object. He is deprived of enjoyments al- 
ready in his possession, or subjected to unmerit- 
ed pain or reproach, or prevented from improv- 
ing his situation by his industry. When such 
injuries are threatened, he exerts himself to 
avert them, and in doing so, he does not hesi- 
tate to turn the evil against him by whom it was 
contrived. In thus defending himself, he is sup- 
ported by the feelings of all mankind. Whoever 
is present will cheerfully assist him in repelling 



90 OF THE RIGHTS OF GOVERNMENT. 

the injustice, and in protecting his property, his 
character, or his person. Accordingly, while he 
confines himself to defence against injuries, he 
will be universally considered as exercising one 
of his most important and incontrovertible rights. 

Should resistance be unavailing, or should the 
injury be perpetrated before there was time to 
prepare for defence, the person, whose comfort 
or respectability has been attacked, will feel a 
desire of revenge suited to the injury which he 
has suffered, and to the contempt implied in the 
outrage. By inflicting pain in his turn on the ag- 
gressor, while he satisfies this resentment, he 
proves that he cannot be wronged with impuni- 
ty, and thus he takes the most effectual means to 
deter from a repetition of the offence. 

He who has been injured is, no doubt, apt to 
carry his vengeance too far, and by excessive se- 
verity, to commit a crime sometimes more atro- 
cious than that which he resents. But if his pas- 
sions be restrained within due bounds, every spec- 
tator will feel an indignation which will secure 
not only approbation of the punishment, but ac- 
tive co-operation to prevent the escape or impu- 
nity of the offender. To this extent, the feelings 
of all mankind will acknowledge the natural 
right of punishment. 

The rights of man, then, independent of all 
modifications introduced by accident, custom, 
or positive institutions, may be reduced to two 
great classes. 



OF THE RIGHTS OF GOVERNMENT. 91 

1st. Rights regarding our own actions, which 
extend to every part of our conduct not injuri- 
ous to the equal rights of others : and, 

2d. Rights regarding the actions of our neigh- 
bours, which extend to self-defence, and to the 
punishment of crimes affecting our security and 
happiness. 

These conclusions would probably have given 
rise to little controversy, had not the doctrine of 
natural rights been considered by one class of 
political writers, as leading to dangerous specu- 
lations on government, and by another class, as 
adverse to their opinions respecting the right of 
property. From such views, all rights whatever 
have been denied, and it has been asserted, that 
man, being at every instant of his life under the 
obligation of duty, can never have a right to 
do what is morally wrong. " There is no sphere," 
it has been said, " in which a human being can 
" be supposed to act, where one mode of pro- 
" ceeding will not, in every given instance, be 
" more reasonable than any other mode. That 
" mode the being is bound by every principle of 
"justice to pursue."* And again, " If then 
-" every one of our actions fall within the pro- 
" vince of morals, it follows that we have no 
4 * rights in relation to the selecting them. No 

* Godwin's Enquiry concerning Political Justice, Book II. 

Chap. V. 



9S OF THE RIGHTS OF GOVERNMENT. 

* one will maintain, that we have a right to tres- 
•" pass upon the dictates of morality."* 

It will be unnecessary to enter into any farther 
refutation of these opinions, than what is contain- 
ed in the foregoing part of this chapter, and in the 
enquiry prefixed to this treatise ; more particular^ 
ly as the author that has been referred to, in the 
second edition of his work, has explained them 
in a manner which renders them of very little 
practical importance. " Every man," says he, 
" has a certain sphere of discretion which he 
" has a right to expect shall not be infringed by 
" his neighbours."t No man must encroach up- 
" on my province, nor I upon his. He may ad- 
" vise me moderately and without pertinacious- 
" ness, but he must not expect to dictate 1 to me. 
" He may censure me freely and without reserve, 
" but he should remember that I am to act by 
" my deliberation, and not his. He may exer- 
" cise a republican boldness in judging, but he 
" must not be peremptory or imperious in pre- 
" scribing. Force may never be resorted to, but 
" in the most extraordinary and imperious emer- 
" gency."t From the opinion thus explained, 
no very mischievous consequences can be appre- 
hended > but neither can any useful conclusions 
be drawn. Not only, according to this author, 
is a man deprived of right over his own actions, 

* Godwin's Enquiry concerning Political Justice, Book II. 
Chap. V. 
f Ibid. i Ibid. 



OF THE RIGHTS OF GOVERNMENT. gS 

but all other persons have a full and perfect 
right to whatever services it may be his duty to 
render them. He possesses, however, a sphere 
of discretion superior to their rights, and extend- 
ing to all actions not directly injurious to them, 
within which sphere of discretion his conduct 
cannot be controlled. In whatever view, then, 
moralists may consider this discretion, it is clear 
that, in politics and law, it is exactly what has 
been denominated a right. # 

Any difficulty there may be on this subject 
arises from the term right having two significa- 
tions, which, though connected with each other, 
are easily discriminated. Right, used as an ad- 
jective, expresses what is morally proper, what 
is virtuous ; used as a substantive, it denotes ei- 
ther a claim against another founded in strict 
justice, or that discretionary power over one's 
own person and property, which cannot justly 
be controlled. The context making it abundant- 
ly obvious in which of its senses the term has 
been employed, no ambiguity ever arises from 
these different imports of the word. Thus, 

* In Mr Burke's Reflections on the Revolution in France, 
the existence of rights, when their exercise would be inexpe- 
dient, seems to be formally denied. 

" Men have no right to what is not reasonable, and to what 
t( is not for their benefit." — Page 92. 

Yet a few pages before, the existence of discretionary rights 
seems just as formally admitted; 

" Whatever each man can separately do, without trespass-' 
u ing upon others, he has aright to do for himself."— -Page 8?. 



94 OF THE RIGHTS OF GOVERNMENT. 

we are easily understood when we say, that, in 
certain cases, a man ought to waive his rights, 
or that it would be wrong, improper, or even 
wicked to exercise them. The right, in these in- 
stances, is conceived to remain entire, although 
its exercise may be in opposition to the dictates 
of duty, and to every virtuous feeling of the hu- 
man heart. 



SECTION II. 

Of the Divine Right of Government. 

When we look around us in the world, we 
cannot fail to perceive that those rights, which 
arise out of the principles of human nature, 
have in all ages and countries been greatly cir- 
cumscribed. Every where governments have 
been established, which not only deprive individu- 
als, in a great measure, of the right of self-de- 
fence, and altogether of that of punishment, but 
also interfere with the discretionary actions of 
the citizens, prohibiting many which are not un- 
just, and enforcing others which are not agree- 
able. The view of a state of society, so different 
from that which the constitution of man had 
pointed out as just, naturally suggests two ques- 



OF THE RIGHTS OF GOVERNMENT. 95 

tions, which, though quite distinct, have very fre- 
quently been confounded. 

1st. From what circumstances have the go- 
vernments of the world arisen ? 

2nd. On what principles can the powers exer- 
cised by government be justified ? 

The first is entirely a question of historical re- 
search, and the answer will be different in regard 
to the government of every separate people. 
Some governments have been instituted by fo- 
reign conquest, others by the talents and for- 
tune of domestic usurpers, many by religious 
frauds, and a few by the common consent of 
the citizens. In all, important changes have at 
various times been introduced, and sometimes 
freedom, at other times tyranny, has been esta- 
blished, by a succession of causes apparently tri- 
vial and minute. The investigation of the actual 
origin of governments, while it thus opens a 
field of incalculable extent, is but casually con- 
nected with the science of politics : but before 
enquiring into the constitution and duties of go- 
vernment, it is obviously necessary to ascertain 
on what principles those powers which distin- 
guish a political state, from that which has been 
denominated a state of nature, can be justified. 

It was long a fashionable opinion in this coun- 
try, that the rights of government were from 
heaven ; that the rulers of nations were the vice- 
gerents of the Great Ruler of the world ; and 
that to resist their orders was rebellion against 



96 OP THE RIGHTS OF GOVERNMENT. 

the Deity. It might have been a sufficient an- 
swer to this doctrine, to demand the production 
of the commission : For as the means by which 
power was acquired, and the mode in which it 
was exercised, were frequently in opposition to 
all our ideas of benevolence and justice, it cer- 
tainly required some revelation to convince us 
that such governments were appointed by a God 
of justice and of mercy. Whenever such com- 
missions were produced, it would become us to 
submit, but, in their absence, some other justi- 
fication of the rights of government must be 
sought. 

It was, indeed, pretended, that the possession 
of power was in itself a manifest declaration of 
the will of that Being, without whose consent no 
power could subsist. But the slightest consider- 
ation must convince us, that every action of 
man, even every crime which he can commit, 
being as evidently permitted by the Deity as the 
exercise of political power, the actual possession 
of the government is no more a proof of divine 
right in the rulers, than the commission of a fla- 
gitious crime is a proof that injustice and cruelty 
and rapacity are approved of by a being infinite- 
ly good and wise. By this system, it is plain 
that morality was altogether disregarded, supe- 
rior force being set up as the sole umpire of 
right. That many governments have been esta- 
blished and maintained on this basis is unques- 
tionably true ; but it is difficult to conceive how 






OF THE RIGHTS OF GOVERNMENT. 97 

any kind of right can arise from what is altogether 
unconnected with morality, from what may be 
equally employed to inflict injury, as to assert 
the cause of justice. Were there no better right 
in government, every usurper would be as well 
entitled to his throne as a lawful monarch, and 
whenever the people or a faction overturned the 
established order, whatever tyranny they might 
substitute in its place might instantly claim the 
same sanction of the Divine Will. The murderer 
of the last sovereign, as has been saio>to be the 
established rule among some barbarians, would 
have the only legitimate title to the throne. 

It is unnecessary to enter at any greater length 
into the consideration of this exploded opinion.* 
Another view of the divine right has been taken 
by some authors, which, though much more ra. 
tional, seems inadequate to the justification of 
government, unless in those countries where pro- 
per and enlightened ideas are entertained of the 
Divine Nature. God, it has been said, having 
willed the happiness of mankind, must have will- 
ed all those means by which that happiness can 

* The doctrine of divine right has been examined $nd ex- 
posed by Locke in his treatise on government, and by Syd- 
ney, in his discourses on government. It is a singular trait in 
the history of political opinion, that any formal refutation of the 
tenet of divine indefeasible right, for a long time the funda- 
mental article in the political creed of the tories, and of the 
church of England (probably also of a considerable majority 
of the nation) would now be considered as an affront to the 
understanding of the reader. 

VOL, I. G 



98 OF THE RIGHTS OF GOVERNMENT. 

be promoted ; and government, being an insti- 
tution most essential to the welfare of man, must, 
for that reason, be considered as of divine ap- 
pointment. 

We shall soon have occasion to enquire how 
far government is justified from utility : In the 
mean time it may be remarked, that, to all na- 
tions who are in darkness respecting the attri- 
butes of God, who either neglect all enquiries on 
so sublime a subject, or represent their Deities as 
delighting in human sufferings, such arguments 
are totally inapplicable ; and that nations in those 
circumstances must have submitted to the exer. 
cise of the rights of government from considera- 
tions quite unconnected with religion. Even 
where philosophy and revelation have combined 
to give juster conceptions of the Deity, the di- 
vine sanction of government is merely an infer- 
ence, from the approbation to which, on other 
grounds, the institution seems entitled. In a 
religious mind, it may enforce the duty of sub- 
mission, and give superior dignity to the rights 
of government ; but it does so only in conse- 
quence of its being already ascertained that that 
duty and those rights are founded on utility and 
justice. To him who doubts of the morality or 
utility of the powers exercised by the state, it 
will be impossible to convey any idea of the di- 
vine right ; and to those, on the other hand, 
who are convinced of that morality and utility, 
the rights of government will be vindicated, 



OF THE RIGHTS OF GOVERNMENT. §9 

whatever ideas of the attributes of the Deity 
may be entertained. In this, as in all other ca- 
ses, there are rules of morality which coincide 
with the dictates of religion, but which maintain 
their force in the human mind, even when our 
ideas of the divine nature are obscured by igno- 
rance, or distorted by superstition. 



SECTION III. 

Of the Right of Government from Compact. 

Mr Locke, having overthrown the lofty pre- 
tensions of government, as deriving its authori- 
ty directly from Heaven, endeavoured to find a 
more humble, but more stable, foundation for 
civil rule, in the consent of the people. Men are 
supposed by him to have originally combined 
together in order to form governments for their 
mutual advantage, and, in return for the protec- 
tion which they procured, to have promised obe- 
dience to the will of the majority, and allegiance 
to those magistrates whom that majority might 
appoint. When a government has already been 
established, the contract which each individual 
forms for himself is of a nature very similar. By 
accepting of protection, he enters into a tacit 



100 OF THE RIGHTS OF GOVERNMENT. 

agreement to obey, during his residence in the 
country, the government by which he is pro- 
tected ; or, by a direct engagement, he be- 
comes a citizen of the state, and promises an al- 
legiance which can terminate only with his life. 
The duties of allegiance and protection are thus 
reciprocal, and whatever puts an end to the one, 
entirely absolves from the other. Accordingly, 
there are two ways in which this compact may 
be annulled. He who has come under no direct 
engagement, may, by leaving the country, annul 
his tacit contract of obedience ; or, on the other 
hand, the assumption of new powers by the go- 
vernment, or the unprincipled use of those en- 
trusted to the rulers, by which that protection 
which had been contracted for is withheld, may 
absolve from their allegiance such citizens as 
had entered into a more direct and positive com- 
pact.* 

Such, till very lately, has been the favourite 
doctrine of the friends of liberty in this country ; 
but when impartially considered, it will be found 
very imperfect, and even, in some respects, sub- 
versive of natural rights. 

] st. It seems impossible to fix any particular 
time for the commencement of this implied con- 
tract.! Each man having the same faculties 

* See Locke on Government, Part II. 

* Mr Burke sets aside this objection, in as far as relates to 
the English government, by asserting that our ancestors, at 
the Revolution, bound themselves and their posterity for ever; 



OF THE RIGHTS OF GOVERNMENT. 101 

with his ancestors, and the same right of discre- 
tionary judgment in his own affairs, must enter 
into a separate contract for himself. But a great 
part of his life must have passed over before he 
can be supposed at all qualified to understand 
the nature of government, or to give any assent 
to that which happens to be established in the 
place of his birth. During all this period, he is 
bound to submission, although no kind of con- 
tract can be conceived to exist between him and 
the community. A boy of twelve years of age 
is amenable to the law, but nobody will pretend 
that at this early age he is capable of judging 
whether the submission demanded from him be 

but he forgets to state how they acquired the right so to do. 
See his Reflections on the Revolution in Fiance, p. 26. 

It is well known that the convention, which was afterwards 
converted into a parliament, consisted in a great measure of 
Tories, who opposed pertinaciously the transference of the 
crown to William III. In such circumstances, the Whigs act- 
ed wisely in avoiding all unnecessary topics of dispute. It had 
never entered into their contemplation to render the monarchy 
of England elective, and they could scarcely refuse to quiet 
the fears of the Tories ( who were, or pretended to be, appre- 
hensive of such a result) by marking, in the strongest words 
that could be devised, their intention, that, in future, the crown 
should pass by hereditary descent. 

The phraseology employed for this purpose, as well as the 
general declaration that James II. had abdicated the throne, 
may neither be very manly nor consonant io truth, but it 
would ill become Englishmen to blame a compromise, by which 
their practical liberties ware secured, and another civil war 
and restoration were probably prevented. 

See the account of the conference between the two houses 
of convention in Rapin's Hist. Book XXI. 



102 OF THE RIGHTS OP GOVERNMENT. 

compensated by the protection which he enjoys. 
On what principle is he obliged to obey the go- 
vernment, before he can be supposed to have gi- 
ven any kind of assent to it ? Should we disco- 
ver the nature of the obligation under which he 
acts during his youth, most probably we shall 
find that its duration is not confined to the early 
period of his life, but that, without any promise 
tacit or direct, it is of itself sufficient to justify 
all the powers essential to government. 

2d. It is extremely difficult, without infringing 
the plainest rules of justice, to regulate the man- 
ner in which this engagement must be contract- 
ed. No maxim can be more universal, than that 
deliberate consent is essential to every contract. 
He cannot be said to have entered into an agree- 
ment, who has repeated a form of words which 
he did not understand, far less the person who 
has assented to a proposition, without any kind 
of deliberation, or who, with far other views, has 
performed some action from which consequences, 
never in his contemplation, are made to flow. In 
all such cases, the intention, from which alone 
promises derive validity, is obviously wanting. 

The tacit compact, on which the duty of sub- 
mission has been rested, is precisely of this na- 
ture. By continuing to reside in a country, we 
are said to have promised obedience to the esta- 
blished government. But have we ever consi- 
dered our residence to be such an expression of 
approbation as to bind us to the support of the 



OF THE RIGHTS OF GOVERNMENT, 103 

constitutional laws? or can we recollect any 
time at which the propriety of remaining in our 
native country, or of emigrating to another, was 
a matter of serious deliberation ? A man resides 
in the country of his forefathers from habit, 
from affection to his friends, from the greater 
probability of his being able to maintain himself, 
from his inability to speak foreign languages, 
from the expence of removal, from indolence, 
from prejudice ; from these, and similar motives, 
but never perhaps from the mere approbation of 
the system of government which he finds esta- 
blished. Happy indeed it is for him, when he 
can in every respect approve of the constitutional 
laws of his native country ; but even if he should 
altogether condemn them, a thousand powerful 
considerations may prevent him from entertain- 
ing the most distant idea of emigration. So far 
is the residence in a particular country from 
being a proof of a deliberate preference of its 
institutions and laws, or of a promise to submit 
to the established government, that emigrations 
are perhaps less frequent from those parts of the 
world where protection is almost unknown, than 
from such as enjoy a degree of liberty, w r hich in- 
spires superior enterprise, and presents fewer ob- 
stacles to the exercise of private judgment. The 
degree of submission, which government has a 
right to claim from the citizens, must surely be 
determined otherwise, than by a fictitious infer- 
ence from an action confessedly prompted by 



104 OF THE RIGHTS OF GOVERNMENT* 

motives altogether unconnected with any idea of 
compact with the state. 

Should political tests be instituted, by which 
every man, at a certain age, may be obliged to 
declare his determination to obey the laws and 
support the constitution, and should those who 
refuse to receive the test be forced to leave the 
country, the injustice, in place of being mitiga- 
ted, would become much more flagrant. No- 
body indeed could* in this case, complain of be- 
ing circumvented, or of being bound by a con- 
tract to which he never was a party. But a con- 
sent, not flowing from conviction, but extorted 
by the denunciation of punishment, could not be 
considered as voluntary, or consequently as va- 
lid. To many people, the effects of emigration 
must, in a pecuniary view, be very detrimental ; 
to all, a final and involuntary separation from 
their friends, their relations, and the scenes of 
their youth, will be most painful. Few being wil- 
ling to encounter such hardships merely on ac- 
count of political opinions, which very probably 
might never be of much importance either to 
themselves or others, the tests would be signed, 
not because the propositions which they contain- 
ed were approved of by the understanding, but 
as the only means of escaping that banishment 
which was denounced as the punishment of deli- 
berate refusal. A man subscribing under such 
constraint, could no more be considered as com- 
ing under an obligation, than he who should 



OF THE RIGHTS OF GOVERNMENT. 105 

make an agreement while a pistol was presented 
to his breast. 

It is true, that political tests would not long 
be considered in this serious point of view. When 
the refusal to subscribe was attended with such 
intolerable punishment, compliance would soon 
be looked upon as an unmeaning form. Like a 
religious test, or an election oath, the prescribed 
form of adherence to the government would be 
signed without being read, and the few who were 
too scrupulous to give an outward assent to what 
they could not approve, would be treated as vi- 
sionaries and fanatics, whose notions were alto- 
gether unfit for the world. In such a state of the 
public mind, assent without deliberation would 
be the miserable foundation of civil government. 
Such an assent, such a contract, were a mock- 
ery of justice, and an insult to the human un- 
derstanding* 

But it still remains for us to enquire into the 
principle on which a man can be forced to make 
his choice between the subscribing of a political 
test and the abandoning of his native country. 
Banishment is always an inconvenience, often a 
very grievous punishment ; yet a right is assert- 
ed of inflicting this punishment on all who may 
disapprove of the established form of govern- 
ment. Whence does this right arise ? In whom 
is it lodged, and by what authority ? The coer- 
cion of opinion, if not altogether unjust, is cer- 
tainly one of the most questionable exertions of 



106 OF THE RIGHTS OF GOVERNMENT* 

the rights of the state ; yet it is to be exercised 
towards those who, so far from sanctioning such 
a right, refuse to enter into that contract by 
which alone all public rights are said to be crea- 
ted. If this can be justified, the same reasonings 
are likely to extend to every case in which the 
community interferes with the conduct of in- 
dividuals ; and consequently the supposed ori- 
ginal compact will be an unnecessary fiction. 
That which justifies coercion of opinion may 
surely be sufficient to justify the less important, 
and less questionable, functions of civil govern- 
ment. 

3d. The nature of the agreement concluded 
between the state and the citizens must be ill 
defined where the contract is tacit, and will pro- 
bably be very prejudicial to the public interests, 
where this ambiguity is removed by political 
tests. In return for protection, every inhabitant 
is bound to obedience. But to what is he to 
vield obedience ? Is it to the rulers ? Is it to the 
constitution of the country ? oris it to the whole 
regulations which may be established by igno- 
rant, weak, or wicked legislators ? As the con- 
tract is tacit, there is no authority to refer to, 
no means of ascertaining the import of that obli- 
gation which residence in a country is supposed 
to create. 

Were a political test presented to us, this un- 
certainty would in part be removed; but it 
w T ould be. difficult to draw up such a test, with- 



OF THE RIGHTS OF GOVERNMENT. 107 

out rendering it either a defence of unjust power, 
or a jargon unintelligible to the great body of 
the people. If the obligation be solely to obey 
the rulers in return for protection, it at once 
cuts off all pretence for interference with the 
government, and annihilates all the rights of the 
nation. Whatever is ordered by the government, 
however degrading or immoral it may be, he who 
has bound himself to unlimited obedience must 
perform. Whatever errors or crimes he may dis- 
cover, he must remain a quiet spectator. As 
long as he receives the stipulated protection, 
even in opposition to his conscience and his ho- 
nour he must yield the stipulated obedience. 
But is it conceivable that any one should volun- 
tarily enter into such a contract ? Is mere pro- 
tection of such importance, that, in order to ob- 
tain it, he should surrender all control over his 
own actions, and reduce himself to the condi- 
tion of a slave ? 

If obedience be promised, not simply to those 
who happen to be in power, but to the constitu- 
tional principles of the government, it seems re- 
quisite that the contractors should understand 
the nature of these principles, and of the autho- 
rities which the constitution has created. Unless 
a person has considered the established distribu- 
tion of political power, unless he has deliberate- 
ly balanced its several advantages and defects, 
his promising to support what, for any thing he 
knows to the contrary, ought to be instantly 

1 



108 OF THE RIGHTS OF GOVERNMENTS 

overturned, can scarcely lay him under any ob- 
ligation, or become the foundation of a right* 
He might well complain that his ignorance had 
been imposed upon, that he had been made to 
express an opinion without any means of judg- 
ing, and that this rash opinion was held up as a 
bar to improvements, on which his happiness, as 
a citizen of the state, materially depended. In 
what way could an assent, without investiga- 
tion or knowledge, be considered as obliging 
any one to uphold what was essentially destruc- 
tive ? Or if it were afterwards competent to those 
who had signed the test, on better information, 
to withdraw their obedience from what they were 
convinced was radically prejudicial, how could 
such a contract, liable every moment to be set 
aside by the contractors, form any stable founda- 
tion for government ? 

The situation of the great body of the people 
renders it impossible for them to judge of the 
abstract principles of a constitution. Those who 
labour for a scanty maintenance, whose time is 
occupied in the active pursuits of commerce and 
manufactures, or who, nursed in luxury, are ener- 
vated by early indulgence ; all those classes of 
men, comprising a large part of the population, 
have little time or inclination for abstract specu- 
lations. Their sagacity might lead them to form 
a correct judgment of practical measures, but it 
is impossible for them to trace those distant con- 
sequences, and to appreciate those nice adjust- 



OF THE RIGHTS OF GOVERNMENT. 109 

merits, on which the excellence of a constitution 
Is said to depend. 

The constitutional law, too, is seldom written, 
but must be collected from practice, and from a 
variety of precedents sometimes at variance with 
each other. Being the result of institutions hand- 
ed down from a remote age, and gradually alter- 
ed according to the circumstances of the times, 
there is no paramount authority by which the 
exact principles of the constitution can be as- 
certained ; and each person being, in some mea- 
sure, left to his own judgment, the most oppo- 
site and incongruous opinions, with regard to 
the various prerogatives of the government, or 
privileges of the people, must necessarily be en- 
tertained. If the test be so particular as to em- 
brace every power exercised by government, to- 
gether with all the modifications arising from 
custom, and from particular laws which have no 
immediate, though a very important, influence 
on the spirit and practice of the constitution, it 
must be so tedious and intricate as to be altoge- 
ther incomprehensible. Should it, on the other 
hand, merely delineate an outline of the govern- 
ment, it will be so general that each person may 
interpret it according to his own views, and eve- 
ry party in the state, holding the constitutional 
test in their hands, may accuse their opponents 
of deliberate perjury. 

If government possess no rights independently 
pf an assent to propositions either extremely in- 



I 10 OF THE RIOHTS OF GOVERNMENT. 

tricate or altogether vague, given without consi- 
deration by persons unable to understand the 
subject, it surely rests on a very insecure foun- 
dation: and in most nations, where even this 
slight prop is wanting, there being merely a ta- 
cit contract binding the citizens to obedience, 
without specifying its nature, object, or extent, 
the obligation is either so indeterminate as to 
be of no avail, or so extensive as to become in- 
consistent with justice, and adverse to the inte- 
rests of mankind. 

4th. The term during which the contract shall 
last, is also a matter of considerable difficulty. 

We are told that if this contract be tacit, as 
long as an individual enjoys any property, or re- 
mains in any part of the territory, he is under an 
obligation to submit to the established govern- 
ment \ but " he that has once, by actual agree- 
" ment, and any express declaration, given his 
" consent to be of any commonwealth, is perpe- 
" tually and indispensably obliged to be and re- 
" main unalterably a subject to it, and can never 
" be again in the liberty of the state of nature ; 
" unless, by any calamity, the government he 
" was under comes to be dissolved, or else, by 
" some public act, cuts him off from being any 
" longei*a member of it."* From this it would 
appear, that a tacit contract remains during the 
whole of a man's life, unless he quit his country; 

• Locke on Government, Book II. Chap. 8th. {121. 



OP THE RIGHTS OF GOVERNMENT. 1 1 1 

and a direct contract, even if he should emigrate 
and live under the protection of a foreign state. 
If such be the obligation, all attempts to reform 
even the most tyrannical governments must be 
utterly unjust. Should a despotism, which tram- 
pled on all laws, human and divine, be once es- 
tablished, no matter by what means, neither 
those who, by living in the country, had given 
a tacit assent to it, nor such as had come un- 
der any particular engagement, by a declara- 
tion or test, could pretend to mitigate or over- 
turn that tyranny which they had promised 
to defend. While an individual insisted on re- 
taining the old abuses, they must all be conti- 
nued ; for those who receive the accustomed de- 
gree of protection, cannot be released from that 
submission, to which, tacitly or directly, they 
are pledged. If the government do not dege- 
nerate, the subjects, having expressly bargain- 
ed away any rights which they might claim 
to improve their condition, must be content. 
On this system, the same degree of obedience 
is due to the best government and to the worst; 
those of England and of Algiers ought to be 
equally venerable, equally sacred. All political 
enquiry becomes useless where there can be 
no improvement, and dangerous where it might 
lead to infringements of this original compact. 
In the science of politics, no abilities can en- 
lighten, no experience render wise ; a new mode 
of oppression may indeed be resisted, but what- 



112 OF THE RIGHTS OF GOVERNMENT. 

ever absurdity has once been established, must 
remain unchangeable to the end of time** 



SECTION IV. 

Of the Right of Government from Utility. 

The difficulty being so great of justifying the 
powers exercised by government, either by di- 
vine appointment, or human contracts, and the 
rights of government being at the same time so 
universally acknowledged and respected, it was 
natural to look for their origin in those general 
principles of morals, according to which all the 
actions of man are approved or condemned. 

In this investigation, however, the principle 
of propriety can afford but little assistance. That 
which is proper is approved by mankind, and 
excites esteem, good-will, or affection; while 
its omission occasions disappointment, disap- 

* This absurdity, scarcely less revolting than that of divine 
right, seems to be adopted by Mr Burke. " If civil society," 
says he, " be the offspring of convention, that convention must 
" be its law ; that convention must limit and modify all the 
M descriptions of constitution which are formed under it. Eve^ 
" ry sort of legislative, judicial, or executory power, are its. 
*' creatures,'*— Reflect, on the Rev t in France, p. 87* 



OF THE RIGHTS OF GOVERNMENT. 1 IS 

probation, and dislike. But in these sentiments 
there is no foundation for positive rights. How- 
ever amiable, praise-worthy, and desirable an ac- 
tion may be, its non-performance, unless when 
directly injurious, cannot be punished, nor con- 
sequently can its performance be enforced. In 
vain should we establish the propriety of sub- 
mission, either to the dictates of a majority, or 
to the orders of the wise, the experienced, the 
noble, or the rich : All this might be allowed, 
and still, while disobedience could not be justly 
punished, the performance of the duties of citi- 
zens could not be compelled, nor the rights of 
government vindicated. If these rights, then, be 
sanctioned by the ordinary principles of morals, 
it must be by the principle of utility alone. 

Man has justly been denominated a gregarious 
animal. Unable to exist in solitude, and deri- 
ving his chief enjoyments from his social affec- 
tions, he is impelled, both by necessity and in- 
clination, to draw near to his fellow-men. Ac- 
cordingly, he is always found connected, more 
or less intimately, with his species ; and, whether 
in the most rude or most polished state of soci- 
ety, he must constantly experience, from some 
kind of social combination, advantage more than 
equivalent to his sacrifice of natural freedom. 

1st. If one rude tribe were placed in the neigh- 
bourhood of another, causes of dissension would 
inevitably arise. Disputes would take place 
with regard to the limits within which they re- 

VOL. i. h 



1J4 



OF THE RIGHTS OF GOVERNMENT. 



spectively exercised the cliace ; or should either 
of them have acquired property in flocks, or be- 
gun to cultivate the soil, the desire of possess- 
ing what had been provided by the industry of 
others would instigate the savage tribe to attack 
their more civilized and opulent neighbours. 
Even quarrels between individuals, each support- 
ed by his friends, or rivalship between tribes, 
would occasion frequent jarrings and disputes, 
which, among ignorant men unaccustomed to 
bridle their passions, would terminate in feuds 
and wars. When, in consequence of such quar- 
rels, danger threatened the tribe, the necessity 
of some kind of combination to insure the com- 
mon safety would become evident. The boldest 
warriors, though ready to stand forward in the 
defence of their friends, would never permit those 
who were equally interested in the event, to re- 
main inactive. All would rise up to defend the 
interests and liberties of the tribe, or if any 
showed a reluctance to take the field, they 
would be compelled to concur in those measures 
which were thought requisite to the common 
safety. In so far, their natural right of acting, 
according to the dictates of private interest and 
opinion, would be made to bend to the measures 
adopted by the community. 

But it must soon be perceived, that, without 
some more complete combination, the members 
of a tribe, however brave, would be unable to 
protect their property, or to withstand their ene- 



OF THE RIGHTS OF GOVERNMENT. 115 

mies. The public force, weakened and distract- 
ed by opposite opinions, and by separate efforts, 
sometimes counteracting, seldom aiding, each 
other, would inevitably lose much of its effect. 
The necessity of adopting joint measures would 
be obvious, and the opinions of the wisest, most 
experienced, or bravest, would guide the exer- 
tions of all. Some individual, who had acquired 
general confidence by his strength, talents, or 
bravery, would be raised to a temporary com- 
mand ; his former friends and equals willingly 
submitting to his direction : or should envy, 
vanity, or personal dislike, induce a few to re- 
sist his authority, the rest, seeing the necessity 
of regular and combined operations, would sup- 
port his power, and enforce that submission to 
his will, which appeared essential to the com- 
mon cause. 

2d. The necessity of combination would be 
nearly as obvious for the defence of the tribe 
against another description of enemies, the wild 
animals by which they were surrounded. In 
their expedition against those troublesome neigh- 
bours, all, being equally interested, would be 
obliged equally to concur. Nor could this spe- 
cies of warfare, any more than that undertaken 
against hostile tribes, be successfully conducted, 
without a general plan, common measures, and 
leaders whose orders the rest conceived them- 
selves bound to obey. The co-operation of the 
whole society would be found requisite both for 



116 OF THE RIGHTS OF GOVERNMENT. 

preventing the escape of the wild animals, and 
for attacking them with less hazard ; and this 
co-operation could be obtained in no other way 
than by establishing some kind of temporary au- 
thority. Even in hunting the more timid ani- 
mals, it would be useful to surround a tract of 
country, to draw the prey together, and thus to 
acquire a store of provisions, which might be 
laid up for the supply of several days. But 
-wherever joint measures are to be pursued, 
there must be a power in the majority, or in 
some leader, to direct the actions of the whole, 
and even to compel the obedience of those who 
disapprove of the persons in whom the public 
authority is lodged, or of the orders which they 
issue. 

3d. Though the laws of justice are coeval with 
man, being founded on the original principles 
of his nature, individuals, in all states of society, 
are apt to give an unwarrantable preference to 
their own interests and gratifications. It is only 
by means of general rules of conduct, so firmly 
established by habit as to recur to our minds 
even in the tumult of passion, that our selfish 
propensities are checked, that, at the moment 
of action, we are reminded of the duties which 
we owe to our fellow- creatures, and of the re- 
morse which will certainly avenge their violation. 
In the infancy of society, such habitual impres- 
sions of duty can scarcely be experienced. While 
men are rude and ignorant, while their passions 



OF THE RIGHTS OF GOVERNMENT. 1 17 

are impetuous, and their intercourse with each 
other too rare and unimportant to imprint the 
laws of justice on their minds, a very trifling 
self-gratification will appear of greater moment 
than the real happiness of others, and, in pursuit 
of selfish indulgences, the dictates of equity will 
very frequently be disregarded. Bye-standers, 
it is true, may occasionally interfere to prevent 
gross injury; but much injustice* might be com- 
mitted unseen, or the spectators might be in- 
dolent, or overawed by the strength of the op- 
pressor. In such a state of society, the right 
of self-defence would often be unavailable ; and 
while the weak might be oppressed by the strong, 
the timid by the more resolute, no man could 
deem himself secure. To feel the evils of such 
a condition could not require much experience, 
nor would it be difficult to devise a proper re- 
medy. Each person would see the necessity of 
being prompt to defend others, if, in his turn, he 
expected to be defended by them. Those who 
were most public-spirited, who showed the great- 
est alacrity in repressing disorder and defending 
innocence, would be most commonly applied to, 
and might, with confidence, call for the co-ope- 
ration of such of their neighbours as were ex- 
posed to similar wrongs, or, on former occasions, 
had experienced the benefit of similar protection. 
When defence was unavailing, the natural in- 
dignation at injustice, and the obvious necessity 
of repressing violence, would induce the same 



118 OF THE RIGHTS OF GOVERNMENT. 

individuals to step forward to assist in the pu- 
nishment of crimes, and would procure them the 
ready aid of their friends and neighbours. 

In executing this office, which they had vo- 
luntarily assumed, they could scarcely fail to re- 
mark, that the injured party was inclined to ex- 
ercise a seventy from which their feelings re- 
volted. Not only w r ould they refuse to concur 
in inflicting such disproportioned punishment, 
but, at the request of the criminal, they would 
endeavour to mitigate the resentment which his 
crime had excited, and if their mediation were 
unavailing, they would protect him against cruel- 
ty and injustice. Thus would they come by 
degrees to be considered as mediators or judges 
between the parties, and thus, from confidence 
in their impartiality, and a desire of maintaining 
the peace of the tribe, would their decisions meet 
with ready and general support, 

When this degree of authority was establish- 
ed, it would become desirable, before an action 
of doubtful justice was performed, to ascertain 
the opinions of those who were likely to be ap- 
pealed to, lest in its consequences it might be- 
come the object of punishment- Those who had 
gradually assumed something of the character 
of judges would not only be requested to inter- 
pose after a crime had been committed, but, be- 
fore recourse was had to any kind of violence, 
their opinion would be taken of what, under all 
the circumstances of the case, might justly be 



OF THE RIGHTS OF GOVERNMENT. 1 ]Q 

enforced. If they were satisfied of the validity of 
a claim, they would either convince the opposite 
party of its equity, or intimidate him from re- 
sistance by their determination to support it ; if 
they thought the claim unjust, they would force 
him who brought it forward to desist. They would 
thus add to their former authority that of civil 
judges. This improvement is so obviously calcu- 
lated to prevent brawls and violence, to secure 
each individual in his just rights, and to main- 
tain the peace of society, that all the members 
of the community would be ready, with their 
joint force, to support the decision of those ar- 
biters. In most cases, too, the general respect 
which raised an individual to the rank of military 
leader, would incline those who had disputes 
with their neighbours, or conceived themselves 
injured, to apply to him for advice and redress ; 
and the community, accustomed to obey his or- 
ders during war, would more readily pay defer- 
ence to his opinion during peace. Thus, might 
the idea of the regular administration of justice 
be gradually introduced, and thus, even in a 
very rude state of society, might a general union, 
to enforce the decisions of judges, be established. 
4th. / Tersons residing in the same neighbour- 
hood would very frequently be led to combine 
their skill, and exertions, for the purpose of in- 
creasing their conveniences and enjoyments. ^ 
When part of a forest was to be cleared, a fishing- 
boat to be built, or any work executed in which 



120 OF THE RIGHTS CF GOVERNMENT. 

several had an interest, those who had experien- 
ced the benefits of association in war, would ea- 
sily perceive the advantages derived from fol- 
lowing out joint measures, under the control of 
the majority, or the direction of such as were 
most experienced in the particular work to be 
performed. As the state of society improved, it 
would be found that different men excelled in 
different employments : one would be active in 
the chace, another more dexterous in fishing : 
one would excel in fashioning arrows, another 
in constructing cabins. By degrees, each person 
would be induced, from the hope of recompense, 
to employ himself in those particular kinds of 
labour in which he was most expert ; and ex- 
changes, once introduced, would draw closer 
the bands of society. At last, many public works 
would be undertaken, in which, all being inte- 
rested, all ought to concur. Roads would be 
made, bridges built, harbours formed, fortifica- 
tions erected, public officers appointed to guard 
against the attacks of enemies, and to protect the 
citizens against the injustice of each other.^For all 
these purposes, for the simplest as well as the most 
complex, some kind of concert is requisite ; some 
kind of authority, by which the wills of indivi- 
duals may be forced to bend to the general good ; 
some sacrifice of natural rights, by which the ef- 
forts of all may be directed to the accomplish- 
ment of undertakings productive of general ad- 
vantage. In so far, political association is found- 



OF THE RIGHTS OF GOVERNMENT. 1 2 1 

ed on views of utility that must be obvious to 
every nation which has emerged from the lowest 
barbarism ; and such motives, weak at first, gra- 
dually attain clearness and precision, as man ad- 
vances to a higher state of civilization. J 

Sth.rWhen nations have made progress in re- 
finement, beneficial effects are found to attend 
the social union, far superior to those views 
of immediate utility, which alone could be dis- 
covered without long experience.) The facility 
of exchange, and the consequent division of pro- 
fessions and increase of skill, occasion so wide a 
diffusion of comfort, so general an enjoyment of 
the essential conveniences of life, that, in this re- 
spect, the condition of the poorest member of a 
civilized state, is superior to that of the most 
powerful chief of a barbarous tribe. < The com- 
munication of ideas, the emulation of individuals, 
the rewards of successful industry or enterprise, 
and the honours attached to every kind of talent, 
multiply discoveries and invigorate the faculties 
of man.^ Even his amusements tend to elevate 
his character, those which consisted in exhibi- 
tions of strength or agility, gradually giving place 
to arts, which enrich his imagination and purify 
his heart. The best feelings of his nature are 
cultivated and improved : no longer wrapped up 
in his own sensations, no longer prevented, by 
the urgency of his own wants, from attending to 
the condition of others, he sympathizes with 
those around him, and takes an interest in what- 



122 OF THE RIGHTS OF GOVERNMENT. 

ever can affect the happiness of man. Such are 
the inestimable blessings which flow from well- 
regulated society ; blessings which, independent- 
ly of experience, could neither have been fore- 
seen nor imagined, but which, even under de- 
fective institutions, have resulted, in no slight 
degree, from political union. " The only true 
" and natural foundations of society," says Sir 
William Blackstone, " are the wants and fears of 
" individuals."* That these, among rude na- 
tions, are the only causes of association is true ; 
but other advantages, not less real or important, 
though less obvious on a cursory view, strength- 
en, in a more advanced state of society, those 
rights of government which are primarily deri- 
ved from protection against injustice, and from 
the execution of public works altogether beyond 
the power of individual efforts. 
i To defend the citizens from injury, to increase 
the efforts of human exertion, to multiply the 
comforts and expand the moral and intellectual 
faculties of man, are, then, the great and import- 
ant ends of society. It is to procure the most 
obvious of these advantages, that individuals, 
even in the most savage condition, form some 
kind of temporary, or of permanent, association ; 
and to continue and improve the superior, though 
less evident, benefits of society, the powers of 
government, in more civilized times, are extend* 
ed and confirmed. Such, indeed, are the habits 

* Blackstone's Commentaries— Introd. Sec. II. 



OF THE RIGHTS OF GOVERNMENT. 123 

acquired under regular government, that it would 
be impossible for him who had tasted the com- 
forts of society to exist in solitude. It is surely 
no wonder that men should submit to a slight 
degree of restraint from which they derive such 
inestimable benefits ; nor can it be necessary to 
resort to feigned contracts, to account for what 
is the obvious dictate of self-interesty/ We take 
proper food and exercise, we adopt a particular 
profession, we choose a small inconvenience, from 
which we expect greater benefit, and we remain 
in regulated society, precisely on the same prin- 
ciple ; a conviction that to do so is advantageous 
to ourselves. Should any one seriously believe, that 
he might derive greater happiness from a solitary 
and independent life, free from the restraints of 
government, but, also, deprived of all its bene- 
fits, he has undoubtedly a right, if his mind be 
sane, to withdraw himself from society. 

The sole purpose of society being to combine 
the efforts of individuals, so as to produce the 
greatest happiness to all, it is evident that what- 
ever form of government is most likely to unite 
intelligence and patriotism, should be preferred ; 
and that those measures which are most condu- 
cive to the general welfare ought by govern- 
ment to be inforced. But with respect to every 
form and every measure of administration, there 
is room for difference of opinion, which is apt to 
be still farther increased by the separate inte- 
rests of individuals, as well as by those of the 



124 OF THE RIGHTS OF GOVERNMENT. 

various classes into which the population be- 
comes naturally divided. Among such jarring 
opinions and interests, how can it be ascertained 
what kind of government should be established, 
or what measures should be pursued ? And by 
what right can those, who have opposed a pub- 
lic act of administration, be compelled, not only 
to submit to the determination of the govern- 
ment, but even to assist in carrying into execu- 
tion that which they condemn ? 

It seems to be a necessary consequence of as- 
sociation, and even to be implied in the idea, 
that the various opinions and desires of indivi- 
duals should be so directed and controlled, as 
to concur in common measures directed to the 
general advantage. To accomplish this, as there 
will always be a diversity in speculation, and 
frequently an opposition of interests, one portion 
of the citizens must yield to the opinion of 
the others. Without this deference on one part, 
the union would in effect be dissolved, no joint 
measures could be adopted, and in place of the 
society acting for the whole, each individual 
would be acting for himself. But whenever a 
sacrifice of opinion becomes necessary, it may 
more justly be demanded from the smaller, than 
from the greater, number. The individuals of 
the two parties being equal both in rights and 
in means of information, or at least there being 
no criterion by which superior talents or know- 
ledge can be made evident, the probability is, 



OF THE RIGHTS OF GOVERNMENT. 125 

that what appears to the majority wise and pru- 
dent will in reaKty be expedient. In many in- 
stances, it is true, this may be found a very false 
conclusion. Numbers do not constitute truth, 
and occasionally prejudices may extend themselves 
so widely, or false appearances may be so sedu- 
cing, or the interests of individuals may be so 
concealed under the mask of patriotism, that the 
majority may be misled. The intentions of the 
majority, however, will usually be good, their 
wish being to promote the happiness and pros- 
perity of the society ; and the minority, as they 
have no means but argument of proving their 
own superior knowledge or ability, can have no 
right to insist on their conclusions being adopt- 
ed. The conviction of the majority, however 
inaccurate a criterion either of justice or expe- 
diency, seems to be the only standard which the 
nature of the case can allow. By this standard, 
all proposals must be examined, and finally 
adopted or rejected. By being adopted, they 
become the act of the whole society, to which 
every individual owes deference and respect ; 
for government being justified by the utility of 
combination, obedience to the will of the majo- 
rity, which is absolutely necessary to render that 
combination effectual, is enforced by all those 
views of utility on which the rights of govern- 
ment are founded. If the end be just and ad- 
vantageous, the only means by which it can pos- 
sibly be obtained can scarcely be reprehensible^ 



126 OF THE RIGHTS OF GOVERNMENT. 

This duty of obedience is not however with- 
out restriction. The rights of majorities can 
never extend to what is manifestly iniquitous. 
Could we conceive measures to be adopted, ei- 
ther by a majority of the inhabitants, or by that 
government which represents the public voice* 
which would subvert, in place of guarding, the 
natural rights of man, which would legalise ra- 
pine, oppression, or murder, such a political as- 
sociation must be a public nuisance, which the 
minority, so far from being bound to obey, would 
have a right to disregard, or even to dissolve 
by force. But while the measures of govern- 
ment are not essentially unjust, even while their 
consequences are less injurious than those pro- 
duced by intestine broils, it must be the duty of 
the minority to submit, persuaded that by this 
submission they consult both their private and 
the public good, and convinced that their opi- 
nions, if founded in truth, will ultimately prevail. 
That obedience which is just and reasonable, 
though it may demand a co-operation in giving 
effect to resolutions which appear rash and in- 
expedient, by no means includes any dereliction 
of the right of private judgment. Nothing more 
can be requisite for the purposes of government, 
than to assist in executing the measures which 
are adopted ; but as it is the wish of the majori- 
ty, as well as of the minority, that these measures 
should be the most expedient, it must also be 
their interest to listen to every argument respect- 



OF THE RIGHTS OF GOVERNMENT. 12? 

ing them, and to avoid restraint on private opi- 
nion, as equally contrary to the rights of indivi- 
duals, and to the welfare of the state. By discus- 
sion, that which is established, if really useful, 
will be rendered universally acceptable ; if per- 
nicious, it will be corrected ; even views altoge- 
ther new may be discovered, and the most salu- 
tary improvements introduced. To stifle such 
improvements in their birth, to prevent the free 
communication of knowledge, to shackle the ge- 
nius of man, can never be the right of any go- 
vernment, and therefore the minority, while they 
are bound to obey the declaration of the general 
will, cannot, either with justice or advantage, be 
prevented from openly avowing their opinions. 

With regard to the form of government which 
may justly be established in any country, we must 
be directed by similar considerations. The con- 
stitution best fitted to promote the virtue, happi- 
ness, and prosperity of the people ought un- 
doubtedly to be preferred, and what that is must 
be determined by the will of the majority, which, 
though a very imperfect criterion of truth, is the 
only one to which it is possible to resort. The 
form of government that is adopted may be very 
inferior to many others ; it may be attended with 
positive disadvantages, and retain many regula- 
tions which, however useful in ancient times, are 
quite inapplicable to the present state of socie- 
ty 7 y et > while it continues to be approved and 



128 OF THE RIGHTS OF GOVERNMENT. 

venerated by the great body of the people, no 
person has a right, otherwise than by argument 
and discussion, to seek a remedy for its defects. 
A very celebrated author, after having esta- 
blished the duty of obedience on the basis of 
utility, argues in favour of submission, except in 
extreme cases, to whatever form of government 
may happen to be established. " Resistance," 
says he, " being admitted in extraordinary emer- 
" gencies, the question can only be among good 
" reasoners, with regard to the degree of neces- 
" sity which can justify resistance, and render it 
" lawful and commendable. And here I must 
" confess, that I shall always incline to their 
" side, who draw the bond of allegiance very 
" close, and consider an infringement of it, as 
*' the last refuge in desperate cases, when the 
« public is in the highest danger from violence 
*< and tyranny." In the whole of this essay,* 
Mr Hume seems to have forgotten that the obe- 
dience which he has shewn to be founded on 
utility is only that which is requisite to the con- 
tinuance of political union, to the maintenance 
of public justice, and the adoption of joint mea- 
sures by the community ; not that degree of sub- 
mission which may be necessary to the existence 
of any particular form of government. " He," 
says Locke, t " who will with clearness speak 

* Hume's Essays, Part II. Essay XIII. 

f Locke on Government, Book II. Chap. XIX. 



OF THE RIGHTS OP GOVERNMENT. If9 

" of the dissolution of government, ought in the 
« first place to distinguish between the disso- 
" lution of the society and the dissolution of 
" the government." One form of administra- 
tion may be abolished and another substituted 
in its place, without the dissolution, or even the 
suspension, of the social combination ; and it 
would be a mere perversion of language to main- 
tain that, because government is highly advanta- 
geous to man, any particular description of it is 
therefore to be preserved. It is acknowledged 
that a form of administration which, so far from 
defending the rights of the citizens, is itself the 
parent of injustice, ought to be abolished from 
the same views of utility that protect legitimate 
authority. It will readily be granted, on the 
other hand, that all such institutions as answer 
the ends of their establishment ought to be. firm- 
ly maintained. But why should mankind conti- 
nue under forms of administration, which, how- 
ever well adapted to former times, are ill suit- 
ed to the present condition of society ? Why 
should they be precluded, by exaggerated ideas 
of loyalty, from adopting improvements unknown 
to their ancestors, from profiting by the expe- 
rience of the world ? Though we should have 
suffered no great degree of oppression from the 
former government, though " the public should 
" not be in the highest danger from violence 
f* and tyranny -" yet, if we have become ac- 
quainted with a form of administration which i& 

VOL, I. I 



130 OF THE RIGHTS OF GOVERNMENT. 

likely to increase the happiness, to improve the 
virtue, or to strengthen the security, of the citi- 
zens, we are bound in duty to recommend it to 
others, and, as soon as it is generally approved 
of, to insist upon its adoption. 

It is true that, in all changes, there is much 
inconvenience and danger, from the operation 
of habits and prejudices, which may have been 
overlooked or despised ; and that* on this ac- 
count, the mere circumstance of its being esta- 
blished and tried is a powerful recommendation 
of an existing government. Men are so warmly 
attached to the institutions of their ancestors, to 
those authorities which, from infancy, they have 
been accustomed to respect, and which are en- 
deared to them by the recollection of happiness 
enjoyed under their protection, that there is lit- 
tle danger of the majority of a nation, unless 
when roused by oppression, being inclined to 
rash or capricious innovation. It requires a long 
experience of real evils to overcome indolence 
and inattention, to break down the associations 
formed by continued habits of obedience, to dis- 
sipate that salutary illusion which to the eye of 
patriotism represents the national laws and esta- 
blishments in the most fascinating colours, and 
to convince the body of the people that the ex- 
isting government is in any material circumstance 
defective or unjust. But whenever this convic- 
tion has reached a decided majority of the na- 
tion, reform, or, as the occasion may require, a 



OF THE RIGHTS OF GOVERNMENT. 131 

complete alteration of the government, is incon- 
testibly just. It is no objection to say that the 
majority may be misled. No doubt they may j 
but as their interests are identified with those of 
the public, they are less exposed to an improper 
bias, than the minority, among whom, on every 
surmise of reform, must be found all who derive 
private benefit from public abuse. Nor is it a 
valid objection to state the confusion and blood- 
shed which the struggle may produce. Disorder 
ought not to be risked for a trifling improvement ; 
but if the advantage be considerable, and a deci- 
ded majority have declared in favour of the alter- 
ation, it would be dastardly to be appalled by 
an unprincipled opposition. Should the minori- 
ty refuse to acquiesce in the general will, they 
may justly be compelled, and should disorder of 
any kind occur in the struggle, they may justly 
be punished ; their conduct being subversive of 
all those principles, on which the rights of go- 
vernment are established. 

Such seems to be the foundation of the right 
of a majority to act for the whole community, 
and such are the limits within which that right, 
from its own nature, is circumscribed. Several 
authors, however, have found, or fancied, such 
difficulty on this subject, that though they reject- 
ed all idea of a compact between the rulers and 
the people as the foundation of civil authority, 
they conceived an agreement, direct or tacit, 
among the individuals of the state, to be abso- 



iSQ OF THE RIGHTS OF GOVERNMENT. 

lutely necessary to create an obligation in the 
minority to submit to the decisions of the greater 
number. " S'il n'y avoit point de convention an- 
" terieur, ou seroit, a moins que l'election ne 
" fut unanime, ^obligation pour le petit nombre 
" de se soumettre an choix du grand ; et d'ou 
" cent qui veuillent un Maitre ont ils un droit 
" de voter pour dix qui n'en veuillent point ? 
" La loi de la pluralite des suffrages est elle-meme 
** un etablissement de convention, et suppose, au 
" moins une fois, Funanimite/' # 

Perhaps no practical evil can be justified by 
the fiction of a compact, merely investing a ma- 
jority with the right of acting in name of the na- 
tion. But the hypothesis, although innocent, 
seems equally gratuitous and useless. Modern 
history informs us of the establishment of new 
governments in Switzerland, Holland, America, 
and France, after revolutions had shaken to 
atoms every vestige of their former constitutions. 
If ever the state of nature, or any thing approach- 
ing to it, could exist, it must be at such a time, 
when all established authority has been subvert- 
ed, and a nation is about to commence a new^ 
career under a government called into existence 
by the general will. It is at such a time, that we 
should expect to find a general compact of the 

* Rousseau, du Contrat Social, Livre I. Chap. V. In this 
opinion Rousseau was followed by many of the defenders of 
the French Revolution, 



OF THE RIGHTS OF GOVERNMENT. 1 33 

citizens to submit to the will of the majority* 
and to give effect to whatever constitution should 
by them be approved. But a document of this 
nature is no where to be found. Many differen- 
ces of opinion arose, and many warm disputes 
took place, respecting the form of constitution 
best adapted to the circumstances of each coun- 
try ; sometimes factions and civil wars threaten- 
ed the total destruction of the state ; but the pa- 
ramount right of the majority, having never been 
called in question, was never formally acknow- 
ledged or proclaimed. 

Nor could any compact give force to a right 
which, flowing from the very nature of civil as- 
sociation, is at least as perfect as that which a pro- 
mise or agreement could create. The idea of 
such a compact, which has occurred only to a 
few theorists, has never exerted the slightest in- 
fluence over the conduct of mankind. None of 
us can fix the time when we entered into an 
agreement, direct or tacit, to obey the majority, 
though previously to this it is pretended that we 
were under no obligation to submit to the laws. 
We have continued to obey that government un- 
der which we were born, partly from habit, part- 
ly from a conviction that such obedience is ad- 
vantageous to ourselves, and requisite to the 
good order, peace, and prosperity of the nation. 
In as far as we are actuated by habit, our con- 
duct may have little connection with morality 5 
but in as far as our prompt and willing obedience 



134 OF THE RIGHTS OF GOVERNMENT. 

has arisen from a sense of the duty which we owe 
to ourselves and our fellow-citizens, our submis- 
sion to the laws of our country, and our exer- 
tions to render effectual all measures intended 
to promote the public prosperity, have been vir- 
tuous and just* 



SECTION V. 

Of the Rights of Man in Society, 

On the establishment of political association, 
the natural rights of man must be considerably 
modified ; but there seems no reason to believe 
that they are altogether relinquished. Were this 
the case, an enquiry into their existence, though 
it might be an object of rational curiosity, could 
in no respect influence our political specula- 
tions. To ascertain, that, from the nature of his 
own bodily powers and moral feelings, each 
man is entitled to act as he thinks proper, while 
he does not trespass on others, and to repel and 
punish every trespass against himself would only 
be establishing a barren truth, from which no 
useful inference could spring. For political con- 
clusions referring altogether to the condition of 
man in society, the continuation of natural rights 



OF THE RIGHTS OF GOVERNMENT. Ib6 

after the institution of government, is the only 
circumstance which can render their original 
existence a matter of any practical importance. 
The opinion of Rousseau seems to be, that in- 
dividuals surrender the whole of their natural 
rights to the community, receiving back such 
parts of them as the majority, by a general law 
applicable to all the citizens, may think proper. 
" Ces clauses [du contrat social") bien entendues, 
" se reduisent toutes a une seule, savoir Paliena- 
" tion totale de chaque associe* avec tous ses 
<c droits, a toute la communite." And immedi- 
ately afterwards ; " De plus, Palienation se fai- 
" sant sans reserve, Punion est aussi parfaite 
" qu'elle peut Petre, et nul associe n'a plus rien 
" a reclamer."* 

If Rousseau meant merely to say that the ma- 
jority must ultimately determine what natural 
rights may be retained, and what must be surren- 
dered, he has expressed himself too generally. 
The import of the words which have been quo- 
ted seems to be, that whatever sacrifice of na- 
tural rights the community may demand are jus- 
tified from that circumstance, so that the mino- 
rity can, in no case, consider their rights as in- 
fringed by a general law. This position, how- 
ever, cannot be admitted. It is very conceiva- 
ble that a great majority of a nation may be n> 
ducedto adopt measures irreconcileable to justice, 

* Du Contrat Social, Liv. I. Chap. VI. 



136 OF THE RIGHTS OF GOVERNMENT. 

or to impose unnecessary or vexatious restraints 
both on themselves and others. At such times, 
the minority may find it necessary to submit, or 
the object may be too insignificant to authorise 
resistance ; but neither can this injustice on the 
one part, or submission to it on the other, alter 
the nature of truth, or give the sanction of right 
to what, however well intended, is really an in- 
jury. Difficult as it may be for them to render it 
available in practice, the claim of the minority 
to redress remains entire. 

From the opinion, as stated and restricted by 
Rousseau,* it may be true, that no very serious 
evils can be apprehended. It is always so deci- 
dedly the interest of the majority to do justice, 
that, when the power is lodged in their hands, 
more particularly when every law must equally 
affect each individual of the state, no intentional, 
and therefore no very frequent or important, de- 
viations from rectitude are likely to occur. 

It is seldom, however, that the majority of a 
nation is consulted with regard to the admini- 
stration of public affairs, or that the opinion of 
the people, except in extreme cases, is at all 
considered by their rulers. In the course of ages, 
a constitution is formed by fortuitous circum- 
stances, and established by a kind of prescription. 
Sometimes the legislative power is exercised by 
an individual, sometimes by an aristocracy, rare- 

* Du Contrat Social, Liv. II. Chap. IV. 



OF THE RIGHTS OF GOVERNMENT. 137 

Jy by the body of the nation, or by those who 
can represent with fairness the national will. But 
in whatever way the legislative body may be con- 
stituted, as it alone possesses the power of en- 
acting laws, it must be with it that those rights, 
abandoned by individuals to the community, are 
really and practically lodged. As rights cannot 
be surrendered to a majority who have no op- 
portunity of executing the trust said to be re- 
posed in them, if they are at all relinquished, it 
must be to that legislature which determines with 
regard to all public measures, and regulates, by 
general enactments, the duties of the citizens to- 
wards each other and towards the state. But to 
pretend that all the natural rights of man are 
given up without reservation to whatever legis- 
lative power may happen to be established, would 
be to justify every tyranny. The existing go- 
vernment being considered as the depositary of 
every species of right, and all appeals to claims 
which are relinquished being evidently absurd, 
public measures, however foolish or oppressive, 
could not with propriety be complained of as un- 
just ; nor could any citizen demand as his right 
any more civil liberty than he was permitted by 
his rulers to enjoy. All governments, the most 
tyrannical as well as the most just, would be en- 
titled to the same unlimited obedience ; for no 
individual could reclaim any part of those rights 
which he had alienated without reserve. 
Such a renunciation of natural rights, having 



138 OF THE RIGHTS OF GOVERNMENT. 

no pretences to utility, would indeed require to 
be supported by agreement, if any compact, ta- 
cit or implied, between the citizens themselves, 
or between them and their governors, could be 
sufficient to establish a doctrine so dangerous to 
the liberties of mankind. What is the nature of 
this pretended compact ? It is, that the people 
appoint, or acknowledge, rulers, to whom they 
relinquish the whole of their natural rights, trust- 
ing to the equity of these rulers for the restitu- 
tion of such portions of them, as, in their opi- 
nion, may be consistent with the public good. 
The existence of such a contract, of which all 
the advantage is on one side, and all the disad- 
vantage on the other, could be established only 
by the most unequivocal proofs ; and, even then, 
it ought to be disregarded as fraudulent, noxi- 
ous, and unjust, But so far is such a compact 
from being requisite to the establishment of po- 
litical society, that it is entirely repugnant to all 
those views of utility on which the rights of go- 
vernment are founded. 

If the legitimate end of government be to pro- 
tect the natural rights of man, and to increase 
the effects of his natural powers, why should we 
suppose those very rights to be abandoned, 
which society was instituted to defend ? For the 
sake of greater security against injury, and to 
procure the numerous and important benefits 
which result from combining the powers and ex- 
ertions of the citizens, it is necessary that some 



OF THE RIGHTS OF GOVERNMENT. 139 

portion of natural liberty should be surrendered, 
and to this extent the surrender is just, because 
obviously for the interest of each individual. 
But every restriction not justified by this neces- 
sity is a usurpation from which the citizens derive 
no equivalent advantage. " Civil liberty," says Sir 
William Blackstone,* " which is that ofaraem- 
" ber of society, is no other than natural liberty 
" so far restrained by human laws (and no far- 
" ther) as is necessary and expedient for the ge- 
" neral advantage of the public. Hence we may 
" collect, that the law which restrains a man 
u from doing mischief to his fellow-citizens, 
" though it diminishes the natural, increases the 
" civil liberty of mankind ; but that every wan- 
" ton and causeless restraint of the will of the 
" subject, whether practised by a monarch, a no- 
" bility, or a popular assembly, is a degree of 
" tyranny : nay that even laws themselves, whe- 
" ther made with or without our consent, if 
" they regulate and constrain our conduct in 
" matters of mere indifference, without any good 
" end in view, are regulations destructive of li- 
" berty." While the demands of civil govern- 
ment are thus confined within reasonable limits, 
man surrenders but a small part of his natural 
liberty, to ensure the full enjoyment of the restf 

* Commentaries, Book I. Chap. I. 

Very different seems to have been Mr Burke's opinion. 
u That he may secure some liberty, he makes a surrender 
* in trust of the whole of it."— Reflect, p. 88. 



140 OF THE RIGHTS OF GOVERNMENT. 

The portion of right relinquished by man, on 
entering into political society, has usually been 
much exaggerated, from an idea that, in a state 
of natural liberty, there is no restriction what- 
ever on his desires or actions. Blackstone, in 
the passage just quoted, views the law " which 
" restrains a man from doing mischief to his 
" fellow-citizens " as a restriction of his natural 
liberty -, and the same opinion is more expressly 
maintained by Rousseau. " Ce que Phomme 
** perd par le contrat social, c'est sa liberte na- 
" turelle, et un droit illimite a tout ce qui le 
" tente et qu'il peut atteindre ; ce qu'il gagne, 
**■ c'est la liberte civile, et la propriete de tout ce 
** qu'il possede. Pour ne pas se tromper dans ces 
<c compensations, il faut bien distinguer la liberte 
" naturelle, qui n'a pour bornes que les forces de 
66 l'individu, de la liberte civile qui est limitee 
" par la liberte generate."* The opinion, how- 
ever, is very erroneous. The natural rights of 
man, independently of the establishment of go- 
vernment, or the enactment of laws, have other 
boundaries than the force of the individual, be- 
ing limited by the equal rights of others, by the 
eternal and unchangeable laws of justice. " But 
" though this be a state of liberty," says Mr 
Locke, " yet it is not a state of licence. The 
" state of nature has a law of nature to govern 
" it which obliges every one : and reason, which 

* Du Contrat Social, Liv. I. Chap. VIII. 



OF THE RIGHTS OF GOVERNMENT. 141 

« is that law, teaches all mankind who will but 
" consult it, that, being all equal and indepen- 
" dent, no one ought to harm another in his life, 
«< health, liberty, or possessions."* "Dire," 
says M. de Montesquieu, " qu'il n'y a rien de 
" juste, ni d'injuste que ce qu' ordonnent ou 
" defendent les loix positives ; c'est dire qu'a- 
" vant qu'on eut trace" de cercle, tous les ray* 
Ci ons n'etoient pas £gaux." t But if natural 
rights are strictly limited by that justice towards 
others which we never can have any title to 
disregard, it will be found, that those farther re- 
strictions which enable society, by its various 
combinations of skill and force, to promote the 
prosperity and happiness of all, are less nume- 
rous and important than has usually been ima- 
gined. 

I. The natural right which each man possess- 
es, of acting according to his own discretion, 
must evidently be in some degree abridged, in 
order that a number of individuals, or perhaps 
the whole of a community, may combine toge- 
ther for one common end. When public officers 
are to be appointed, public works to be execu- 
ted, and public measures relative both to foreign 
and domestic policy to be adopted, in order that 
any kind of conceit may exist, it is necessary for 
each individual to abate somewhat of his natu- 



* Locke on Government, Book II. Chap. II. § 6. 
f De l'Esprit des Loix, Liv. I. Chap. I. 



142 OF THE RIGHTS OF GOVERNMENT* 

ral right over his own property, labour, and ta- 
lents. The particular cases, in which such sa- 
crifices are demanded by the joint interests of 
the community, are ascertained by positive laws 
directly restricting the natural rights of man, 
and thus virtually acknowledging their previous 
existence ; and wherever such laws are not 
enacted, natural rights maintain their native 
force. On the other hand, when new privileges 
are to be created, the language of the law is 
changed ; in place of being prohibitory it be- 
comes permissive, originatingand conferring such 
rights as did not formerly exist. Were all the 
rights of individuals, by the constitution of so- 
ciety, vested in the community, there would be 
no occasion for restrictive laws in any case, for 
whatever was not directly permitted would re- 
main virtually prohibited. It may, indeed, be 
said that all private rights, being first surrender- 
ed to the public, are afterwards restored, except 
in as far as the laws provide to the contrary. 
Such an hypothesis may be innocent, but it is 
superfluous. If the rights be precisely the same, 
this fictitious surrender and resumption is at best 
the employment of very complicated machine- 
ry, where the simplest lever would be fully 
adequate to the effect. 

When we recollect that the natural rights of 
man extend to every action which he can per- 
form without occasioning injury to his fellow- 
creatures, as well as to the free disposal of the 



OF THE RIGHTS OF GOVERNMENT. 143 

property which he has acquired ; and when we 
contrast with the infinite variety of actions which 
his interests or passions may lead him to perform, 
the few cases in which his discretionary powers 
are abridged, or set aside, by prohibitory laws ; 
we shall be convinced that, even under the most 
arbitrary governments, the greater part of the 
rights of man are habitually respected. Under 
such governments, the possession of these, or of 
any other, rights must necessarily be insecure ; 
but their existence is recognised* by the absence 
of prohibitions, and by the feeling of indigna- 
tion or dismay excited by their occasional vio- 
lation. 

Here, then, seems to be a standard entirely 
unconnected with the distribution of political 
power, according to which the constitutional 
laws of different countries may be appreciated. 
Those governments, whatever their forms may 
be, are most agreeable to the principles of jus- 
tice, which diffuse the greatest portion of securi- 
ty and happiness, call forth the highest exertions, 
of intellect, and, at the same time, encroach the 
least on individual liberty. In the latter point 
of view, different governments are entitled to 
very different degrees of approbation. By some, 
man is left, in ordinary cases, to promote his 
own welfare in whatever manner he may think 
most expedient ; by others, the most vexatious 
prohibitions, the most teazing interferences are 
so multiplied, that he is scarcely, in any im- 



144 OF THE RIGHTS OF GOVERNMENT. 

portant action of his life, left to the guidance of 
his own discretion. Nor does this difference in 
civil liberty depend entirely on the establish- 
ment of any particular form of government. It 
may be difficult to imagine a despotism, under 
which the rights of man shall be invariably, or 
even very generally, respected ; but Sparta and 
Venice afford instances of governments compa- 
ratively free which trod them under foot. 

II. The rights of resisting and of punishing 
injuries may seem, on a cursory view, to be al- 
together abandoned by individuals, on the form- 
ation of regular government ; but a more accu- 
rate enquiry will convince us that these import- 
ant rights are by no means surrendered, although 
the mode of exercising them be materially 
changed. 

Man cannot live long in society, without be- 
coming sensible of his inability, in many cases, 
to protect himself, and of the superior safety 
which he might enjoy under shelter of the pub- 
lic force. Nor is much experience requisite to 
prove, that what originates in self-defence is 
likely, from the irascible nature of man, to ter- 
minate in aggressions which may disturb the 
peace of society. The obvious remedy for both 
of these evils, for the inability of individuals to 
protect themselves, and for the injustice to which 
self-defence is apt to lead, is to vest, in some 
members of the community, a jurisdiction to 
which the parties may apply for redress, and to 

8 



OF THE RIGHTS OF GOVERNMENT. 14>5 

enforce the decisions of those magistrates by 
the power of the state. By such an institution, 
the right of the individual to repel injury is 
transferred to more impartial judges, and more 
powerful protectors ; but his right to security is 
in no respect diminished. Should he be refused 
protection by the judges, while he is prohibited 
bylaw from defending himself, he is treated with 
such manifest injustice that, if he can find any 
practicable means of redress, he is under no obli- 
gation to submit to the wrong. At all times, his 
right to security in his person, property, and 
character remains unimpaired, though he has ex- 
changed his own private and uncertain means of 
exercising this right for a much more regular 
and convenient mode of rendering it effectual. 
Accordingly, when the attack, either on a man's 
person or property, is so sudden that the magis- 
trate cannot afford timely protection, the right 
of self-defence, by the law of England and of 
almost every country, reverts to the individual^ 
who is permitted to repel force by force, and 
even to put the aggressor to death, if there 
be no other way of preventing the commission 
of a capital crime.* 

The natural right of punishing crimes, or ra- 
ther the natural mode of exercising that right, 
is relinquished to a greater extent, than the right 

* See Blackstone's Comm. Book III. Chap, I. and Book 
IV. Chap. XIV. 

VOL. I, K 



146 OF THE RIGHTS OF GOVERNMENT. 

of self-defence. That degree of punishment is 
just, which accords with the sentiments of those, 
who, without being personally affected by it, are 
spectators of the wrong. To this degree they 
will be led, both by their indignation and by 
their conyiction of the necessity of repressing 
injustice, to assist in inflicting some equivalent 
Suffering on the delinquent. But they will con- 
demn a desire of vengeance which exceeds the 
injury, and they will prevent a new crime from 
being committed, on pretence of exercising the 
right of punishment. Blinded by our selfish pas- 
sions, we are apt to conceive a degree of resent- 
ment entirely disproportioned to the wrong which 
we have suffered, and the punishments which, 
under the influence of such feelings, we are in- 
clined to inflict would be real and grievous in- 
juries. At the same time, our powers are often 
as deficient as our desires of vengeance are ex- 
cessive. A bold and powerful oppressor may 
deride our impotent rage, and overawe those 
friends and neighbours, who, from indignation at 
the wrong, were disposed to assist in its chastise- 
ment. Every crime, too, while the aggressor was 
defended by his particular friends and retainers, 
would occasion endless disorder, terminating some- 
times in impunity, and sometimes in excessive pu- 
nishment, but always disturbing the peace of so- 
ciety. Hence, the necessity of vesting the right 
of punishment entirely in the community. But 
by establishing judges, whose sentences are car- 



OF THE RIGHTS OF GOVERNMENT. 147 

ried *$£o effect by the whole power of the state, 
the riglit, in place of being relinquished, is more 
fully enjoyed. The chief difference is, that an 
imperfect mode of exercising it is exchanged for 
one more efficient, the degree of punishment 
which is just (and no individual can have a right 
to inflict a greater) being made to follow more 
quietly, more regularly, and more inevitably, 
the commission of a crime. Punishments in- 
flicted by judges would be unjust towards the 
injured party, if they failed in satisfying that de- 
sire of revenge with which the whole of mankind 
sympathize ; but as these punishments usually 
have a farther object, the procuring atonement 
for the disturbance of the general peace and se- 
curity, they are apt to err by severity, much 
more frequently than by mildness. 

If, however, the laws should deny that punish- 
ment which is just, the right would revert to the 
individual, and his exercise of it would be sanc- 
tioned by the approbation of mankind. When 
slaves were left without protection from the 
cruelty of their masters, as was the case under 
the Roman Republic, and till very lately in the 
British West Indies, # they had an undoubted 
title to avenge their own wrongs, though in do- 

* It is to be feared that this protection, while the testimony 
of slaves is rejected, and juries are formed entirely of proprie- 
tors of slaves, will be more apparent than real. Some most 
extraordinary trials in the West Indies seem to sanction this 
doubt. 



148 OF THE RIGHTS OF GOVERNMENT. 

ing so, they were apt to overstep the limits of 
equal justice. „ 

In like manner, tyrannicide, whenever its con- 
sequences are not likely to be injurious to the 
public, is justifiable, and when these consequen- 
ces are beneficial, it is commendable. He who 
overturns the liberties of his country, or, by 
his unbridled passions, aggravates the evils in- 
separable from arbitrary power, commits the 
most atrocious of all crimes, while by his own 
usurpation, or by the practice of the established 
government, he is screened from legal punish- 
ment. In such a case, each individual resumes 
his natural right, which he had resigned only 
that it might be more regularly exercised, not 
that it might be abandoned by cowardice, or 
sold by corruption. It is true, that it may often 
be dangerous to the individual, or inexpedient 
for the country, that this right should be assert- 
ed ; but the right, notwithstanding, remains en- 
tire, until it may be exercised with private safety 
and public advantage. # 

* See Milton on the Tenure of Kings and Magistrates. 
On this subject, which is to be decided by the natural feel- 
ings of justice, it may not be improper to refer to one of the 
most splendid passages of English poetry. 

" Look then abroad thro' Nature, to the range 
" Of planets, suns, and adamantine spheres 
" Wheeling unshaken thro' the void immense ; 
" And speak, O Man ! does this capacious scene 
?* With half that kindling majesty dilate 
" Thy strong conception, as when Brutus rose 



OF THE RIGHTS OF GOVERNMENT. 149 

The prevalence of duelling is another illustra- 
tion of the right of private vengeance, when suf- 
ficient punishments are not inflicted by law. 
From whatever circumstances the practice of 
duel originated, it is now entirely laid aside, 
where either statute or common law has attach- 
ed a satisfactory penalty to the offence. Even 
when a man's happiness has been utterly ruined 
by the seduction of the object of his tenderest af- 
fections, the heavy damages awarded by juries, 
(although pecuniary compensation seems but ill 
adapted to the crime) have rendered an appeal 
to arms unusual, and even unfashionable. But 
many offences against honour, having their ori- 

" Refulgent from the stroke of Caesar's fate, 

" Amid the crowd of patriots ; and his arm 

" Aloft extending, like eternal Jove 

" When guilt brings down the thunder, call'd aloud 

" On Tully's name, and shook his crimson steel, 

" And bade the father of his country, hail ! 

u For lo ! the tyrant prostrate on the dust, 

u And Rome again is free ! — 

The Pleasures of Imagination, Book I. 
Had Rome again been free, there is probably no mind so 
debased as to have refused its sympathy to this grand exulta- 
tion of the poet. 

" The baleful dregs 

" Of these late ages, this inglorious draught 

" Of servitude and folly, have not yet, 

11 Blest be the eternal Ruler of the world 

" DenTd to such a depth of sordid shame 

u The native honours of the human soul, 

" Nor so effaced the image of its Sire." 

Pleasures of Imagination, Book II. 



150 OF THE RIGHTS OF GOVERNMENT. 

gin in particular feelings, cultivated only by 
the higher ranks of society, are too indefinite 
in their nature, and appear to ordinary jury- 
men too unimportant, to be severely repressed 
by courts of law. There are consequently no 
punishments, or very slight ones, annexed to 
such offences, and on that account, he, who has 
been affronted, is prompted, by his own feel- 
ings, and by the voice of all his acquaintan- 
ces, to seek that remedy, in the resumption of 
his right of private vengeance, which is denied 
him by the ordinary courts. Absurd as a mode 
of redress must be, which makes no distinction 
between slight offences, and flagitious crimes, nor 
even between innocence and guilt, all laws for 
its suppression have proved ineffectual ; and it is 
probable that a court of honour, humorously 
described in the Tatler, if entrusted with suffi- 
cient powers, would be the only efficacious mode 
of putting an end to the senseless and inveterate 
practice of duel.* 

* u Yet it requires such a degree of passive valour, to com- 
" bat the dread of even undeserved contempt, arising from 
4i the false notions of honour, too generally received in Eu- 
" rope, that the strongest prohibitions and penalties of the 
" law will never be entirely effectual to eradicate this unhappy 
" custom, till a method be found out of compelling the origi- 
" nal aggressor to make some other satisfaction to the afFront- 
" ed party, which the world shall esteem as equally reputable 
" as that which is now given, at the hazard of the life and for- 
" tune, as well of the person insulted, as of him who hath gi- 
u ven the insult."— Blackst. Com. Book IV. Chap. XIV. 



OF THE RIGHTS OF GOVERNMENT. 151 

It appears, then, that civil rights are the natu- 
ral rights of man, which, so far from being relin- 
quished at the institution of government, conti- 
nue vested in the individual, to be exercised ei- 
ther by himself or by the community for his be- 
nefit or protection. Such rights, as they are ori- 
ginally equal in all the citizens, cannot be ren- 
dered unequal without partiality and injustice. 
The natural rights of man are confessedly the 
same to every individual ; the advantages of go- 
vernment in additional security, in the increa- 
sed effects of natural powers by combination, 
and in the developement of sentiment, intellect, 
and energy, are also common to all. There is 
therefore no ground on which it can be pretend- 
ed, that the several portions of natural right, 
surrendered as the price of these advantages, 
ought in any respect to be unequal. In so far 
as civil rights are concerned, there ought to be 
no difference between the nobleman and the pea- 
sant ; that law, by which all are protected while 
innocent, and punished when guilty, ought to be 
the same for every member of the community. 

But however incontestable this principle may 
be, it has very generally been disregarded by 
the different governments of the world. Under 
despotism, the capricious will of the monarch, 
or rather of his favourites and flatterers, is the 
only acknowledged standard of equity or law. 
Under oligarchies the rights of the people are 
made to bend to the interests, avarice, and am- 



1J2 OF THE RIGHTS OF GOVERNMENT. 

bition of a few haughty lords. Even in demo- 
cracies, equality of civil rights is often disregard- 
ed amidst opposing factions. It is only, how- 
ever, where the people have some share in the 
government, that equality can possibly be main- 
tained, because it is only there that such equali- 
ty is at all times advantageous to the ruling 
power. When w r e look back to the feudal times 
of Europe, we see a system of disorder and mis- 
rule, a total want of liberty and security, and a 
contention for power among princes, nobles, and 
priests, during which the rights of man were 
trampled in the dust. Many of the most oppres- 
sive laws have now been corrected ; almost all 
the odious rights of superiors have fallen into dis- 
use ; but it is matter of regret, that some inequali- 
ties are yet allowed to disgrace our civil code, and 
still more that the enormous expense of lawsuits, 
by deterring the poor from seeking redress against 
the rich, frequently renders that equality of rights, 
of which we are justly proud, little better than a 
deceitful phantom. Were this great practical 
inequality abolished, it might be of little moment 
that a few unimportant infringements of equal 
rights were suffered to remain in the statute book, 
corrected, as they have been in practice, by the 
good sense and experience of mankind : but the 
game laws, which in England are frequently the 
source of ruin to innocent families, and the laws 
relating to apprenticeships, to corporations, and 
to settlements, by which persons are prevented 



OF THE RIGHTS OF GOVERNMENT. 153 

from changing their place of residence at plea- 
sure, and from employing their labour and ta- 
lents in the manner most beneficial to themselves, 
are such real oppressions on the labouring class 
of the community, while they are unsupported 
by any reasonable plea of public good, that they 
ought instantly to be repealed.* 

To preserve equality of civil rights, it is neces- 
sary, not only that the same laws should extend 
to every individual in the country, without dis- 
tinction of rank or wealth, but also that they 
should be so framed, as to occasion the same re- 
striction of natural right to every class of the ci- 
tizens. From want of attention to this principle, 
many statutes, which are perfectly general in 
their expression, are very partial, and therefore 
oppressive, in their operation. Thus the law of 
settlement, however general in its enactment, 
can occasion no inconvenience except to the 
poor, who find it impossible to lodge the securi- 
ties which are required. Thus also penalties for 
exporting wool, or forestalling markets, though 
they attach generally to every one who may en- 
gage in those prohibited transactions, are inju- 
rious only to landholders and cultivators. 

In conducting the complicated affairs of an 
extensive empire, it is, indeed, impossible that 
every particular measure can in its operations 
affect all the citizens equally. The general good 

* See Smith's Wealth of Nations, Book I. Chap. X. Part II. 



154 OF THE RIGHTS OF GOVERNMENT. 

may sometimes require that laws, obviously par- 
tial, should be enacted. When an important un- 
dertaking is to be executed, either by the state, 
or by a voluntary association, or even by a sin- 
gle adventurer, no one can be allowed to obstruct 
what is generally advantageous. It being one 
of the ends of government to combine the exer- 
tions of individuals for the general welfare, the 
caprices, opinions, or interests, of a few citizens, 
cannot be permitted to disappoint this intention, 
far less can avaricious speculations be allowed to 
raise a tax on the public necessities. Particular 
laws are, therefore, enacted, to compel those 
whose property may be requisite for proposed 
roads, canals, or streets, to dispose of it, at a fair 
and reasonable price. Such laws, it must be ac- 
knowledged, are infringements of strict equality 
of civil rights, as they create restrictions in the 
use and disposal of property which extend only 
to a few. But if, by a liberal compensation, all 
that are affected by the measure are protected 
against pecuniary loss, the injury which they suf- 
fer, in being obliged to give up their own opi- 
nions, or more probably in being prevented from 
indulging some unreasonable caprice, is much 
too slight to be put in competition with the 
public welfare. On the other hand, it is an evi- 
dent abuse of this principle to extend such en- 
actments to cases of little importance, or to 
force one individual to dispose of his property 
to another, even at an over- value, in order to 



OF THE RIGHTS OF GOVERNMENT. 135 

promote any scheme of private advantage. In 
such cases, however unreasonable the one party- 
may be, every interference of the government, 
being destitute of those public grounds on which 
alone it can be justified, must be considered as 
an act of tyrapny, directly subversive of just 
equality of civil rights, 



CHAPTER IL 

Of the Distribution of Political Power. 

SECTION I. 

Of the Degree of Political Inequality that is justified by its 
Utility, 

J he portion of political power to which each ci- 
tizen is entitled has been ranked by some authors 
among the natural rights of man.* Yet, between 
these two classes of rights, there are several dis- 
tinctions both obvious and important. Natural 
rights exist independently of combination ; po- 
litical power is the creature of society : govern- 
ment is instituted chiefly for the protection of 
natural rights ; but the power granted to each 
citizen, so far from being the object of govern- 

* Most of the writers in favour of the French revolution 
seem to have fallen into this mistake. It gave rise indeed to 
the most reprehensible articles of the Declaration of the Rights 
of Man, and of a Citizen, which preceded the French Consti- 
tution of 1791. 

The opinion seems to have been adopted, without due con- 
sideration, from the writings of Kousseau. 

6 



OF THE DISTRIBUTION, &C. 157 

ment, is merely the means by which that object 
is attained : Natural rights, being founded on 
justice, are inalienable, and although they may 
be modified for the general good, they cannot 
be withheld, either by individuals or societies, 
without occasioning direct injury, which may be 
repelled or punished \ but political pow r er is a 
privilege created by the general will, and confer- 
red on particular magistrates for general purpo- 
ses ; he who is possessed of it, has no claim to 
it for his own advantage ; he to whom it is de- 
nied, suffers no privation of his own enjoyments* 
The distribution of political power may be con- 
sidered as the mechanism by which government 
protects natural rights, and augments public 
happiness ; a mechanism which is well or ill con.* 
trived, according to the degree in which it pro- 
duces these important results* 

In a small and uncivilized community, the ne- 
cessity of acting in concert so seldom occurs, 
that the ordinary occupations of individuals can 
scarcely be much interrupted by their public 
duties. When it is proposed to execute any joint 
undertaking, all the citizens combine their coun- 
sels and exertions : the wisest naturally have the 
greatest influence in direction, the boldest or 
most active in execution. In this state of so- 
ciety, there is scarcely any inequality, except 
that which arises from the respect paid to abili- 
ties and virtue ; an inequality founded in na- 
ture, which can scarcely in any circumstances 
lead to abuse. Whenever the object has been 



158 OF THE DISTRIBUTION OF 

accomplished, the temporary power is at an end, 
each individual becoming again independent in 
his conduct, till some new undertaking calls for 
a new concert among the citizens. 

But when it has become necessary to meet 
very frequently on public affairs ; more particu- 
larly when any question occurs which cannot be 
decided at a single consultation, or some work 
is undertaken which, demanding a protracted, 
rather than a very powerful, exertion, can be 
better executed by a few individuals in a course 
of time, than by the whole community at once j 
in such cases, the necessity becomes apparent of 
conferring, on a part of the community, the 
power of acting in name and for behoof of the 
whole. Should all the citizens meet on every 
trivial occasion, their time would be unnecessa- 
rily consumed in public functions, which might 
be as well, or better, executed by a few : One 
of the chief purposes of society would be en- 
tirely disappointed, such a mode of administra- 
tion materially diminishing, in place of increa- 
sing, the effects of the natural powers of man. 
Hence, in every country advanced beyond the 
merest barbarism, magistrates are appointed to 
conduct the affairs of the community ; and as 
these magistrates are necessarily invested with 
greater power than the other citizens, some ine- 
quality of political rights is introduced. This 
inequality is justified by the same principles of 
general utility, on which the rights of govern- 
ment are found ed. 



POLITICAL POWER. 159 

Similar views will frequently suggest a delega- 
tion of the power of enacting those laws by 
which, in the exercise of their authority, the 
magistrates must be guided . In an extensive 
country, meetings of the inhabitants, whenever 
new internal regulations or new measures of de- 
fence are required, must occasion frequent, long, 
and fatiguing journeys, and interrupt all the or- 
dinary occupations of the people. Such meet- 
ings, too, would be so numerous as to preclude 
calm discussion, and render the decisions the 
result of disorder and violence, rather than of 
reason. The best remedy for these inconveni- 
ences is to select a few of the most respectable 
inhabitants of the several districts, and to com- 
mit to them the enactment of laws obligatory on 
the whole community. By such a delegation of 
the legislative authority, not only is much trou- 
ble saved to the great body of the^people, but 
the most effectual means are adopted for guard- 
ing against disorderly violence, for giving due 
preponderance to wisdom and experience, and 
thus establishing laws conducive to the general 
good. Between these legislators and the rest 
of the people, there is undoubtedly an inequali- 
ty of political power j but it is an inequality ari- 
sing from the same views of common advantage 
which lead to the establishment of government, 
and therefore reasonable and just.* 

* Rousseau objects to every delegation of the legislative 
power ; b ut he himself acknowledges that his reasoning is ap- 
plicable only to a very small state. 

See Du Contrat Social, Liv. III. Chap. XV. 



160 OF THE DISTRIBUTION OF 

In the progress of society, more permanent 
power is acquired by some members of the com- 
munity, from the respect paid to their abilities, 
virtues, or courage, or perhaps from the posses- 
sion of riches, which enable them to procure a 
number of retainers dependent on their bounty, 
and ready to obey their commands. Sometimes 
religious frauds, or the acquisition of useful 
knowledge, jealously guarded from the research 
of the vulgar, have been titles to civil power ; 
and authority when once established, particu- 
larly among ignorant nations, is apt to be wor- 
shipped as something too holy to be profaned 
by enquiries into its origin or rights. Hence 
arise many forms of government, w T hich differ 
greatly from each other, in the degree of power 
committed to the public functionaries, in the 
general elegibility of the citizens to office, and 
in the degree in which private happiness and 
the public welfare are promoted. To examine 
each of these forms of government in detail 
would lead to a disquisition as difficult as exten- 
sive. All that is proposed in the present dis- 
course is to establish a few leading principles 
which may facilitate the enquiry. No one form 
of government is adapted to all the various 
and opposite conditions of the human species j 
but there are general principles which, under 
modifications, seem applicable to man wherever 
he may be found, and in whatever state, whe- 
ther barbarous or civilized. 



POLITICAL POWER. 1 61 

The most marked distinction between differ- 
ent governments is in the permanency of those 
inequalities of political power which they create. 
In some, the delegated powers, whether legisla- 
tive or magisterial, expire at certain periods, 
when they are either continued in the same per- 
sons by a new appointment, or transferred to dif- 
ferent members of the community : In others, 
authority is bestowed on one man, for an unli- 
mited time, or, as it is absurdly enough express- 
ed, for ever. The former governments create 
what may be called fluctuating, the latter, per- 
manent, inequalities of political rights. Which 
of these forms should be adopted in any particu- 
lar country, the will of the majority, as in all 
other cases, must decide. Still, however, truth 
is independent of the number of her votaries, 
and therefore we shall proceed to enquire, whe* 
ther, generally speaking, fixed and permanent 
political inequalities ought to be tolerated in a 
well-regulated state. 

As all the citizens have the same natural 
rights, as they all derive the same advantages 
from regular government, and are equally inte- 
rested in the public prosperity, there seem to be 
only two grounds on which such inequalities 
can be defended. It must be shown, either that 
those individuals who are placed permanently in 
office are better qualified than their fellow-citi- 
zens to conduct public affairs, or that some ma- 
terial disadvantages would flow from a more 

vol. I. l 



162 OF THE DISTRIBUTION OF 

equal distribution of power.* Unless one of 
these positions can be satisfactorily maintained, 
it will be impossible by argument to convince 
the majority that there is any reason for their 
continuing in a state of permanent inferiority 
and submission to a few individuals or families, 
neither better nor wiser than themselves. Nor 
will it be sufficient to establish a claim for such 
superiority, on intellectual attainments, obviously 
arising from that very authority which particu- 
lar classes have been accustomed to exercise. 
It is true, that a man properly educated for com- 
mand acquires a promptitude and energy of mind, 
widely different from the indecision of him who 
has always been forced to obey. A domestic 
slave must, almost of necessity, lose every excel- 
lence of his nature, and the subject of a despo- 
tic government, in proportion as he is deprived 
of liberty, must participate in the degraded cha- 
racter of a slave. But this, the worst conse- 
quence of tyranny, can never be adduced as its 
justification. It may suggest caution in resto- 
ring to the people those powers for the exercise 

* y. Now if they pretend the law of nature, they must de- 
" monstrate to us, both that she endowed men with unequal 
"freedom, and that she shaped out such a man to rule; 
" whereas it appears, on the contrary, that all men naturally 
ff are equal : For though nature, with a noble variety, has 
" made different the features and lineaments of men, yet as to 
M freedom, till it be lost by some external means, she has 
" made every man alike, and given them the same desires/'— 
Harringtons Grounds and Reasons of Monarchy, Part I. 

10 



POLITICAL POWER. 163 

of which former degradation has rendered them 
unfit; but, at the same time, it proves to de- 
monstration the necessity of altering a govern- 
ment which has produced such intolerable evils. 
By confining political power to particular classes, 
inequalities are created which have no founda- 
tion in nature, privileges are conferred on those 
who are in no respect entitled to them, and this 
is done by depriving the great body of the peo- 
ple of the most effectual means of improvement. 
If such be the consequences of permanent in- 
equalities, it is vain to attempt to justify them 
by any views of public advantage. 

Political power, independently of any improve- 
ment which it may operate in our characters, 
and of any farther advantages which it may enable 
us to attain, is, in its own nature, fitted to excite 
very lively desires. To be the object of the pub- 
lic gaze, however much it may be despised by the 
philosopher, flatters one of the strongest passions 
in the human heart : it is frequently the secret 
spring of that avarice which accumulates wealth, 
as well as of that prodigality which squanders it 
in ostentatious folly ; and even many of our most 
refined pleasures, those derived from superior at- 
tainments, abilities, or taste, would lose Ynuch 
of their value, if enjoyed in secret, far from the 
knowledge and admiration of mankind. 

«* I would not wish for gold, I would not wish 
<f To breathe the enchanting melody of song 



164; OF THE DISTRIBUTION OF 

" Surpassing Orpheus, would not Fortune place nie 
•' Where I might shine conspicuous."* 

Such is the universal desire for rank and dis- 
tinction, for whatever can separate us from the 
crowd of ordinary men,, direct the public atten- 
tion towards our persons, manners, and acquire- 
ments, or merely procure us the external marks 
of deference and respect. But of all sources of 
distinction, political power is the best suited to 
the general taste, its possession being marked by 
circumstances that are obvious to all, and the ad- 
miration which it excites having that brilliancy 
which never fails to dazzle the multitude. 

Nor are the advantages of political power con- 
fined to the delight arising from general admira- 
tion. The possession of some degree of it seems 
requisite to the security of every civil right. 
Where permanent inequalities are established, 
where the whole authority of the state is lodged 
in privileged individuals or orders of men, (the 
other citizens being not only deprived of direct 
control over public measures, but cut off from 
the possibility of ever acquiring such control,) 
civil liberty, if it does exist, must owe its tolera- 
tion to the wisdom or fears of the rulers. But 
this wisdom may be transient, these fears may 
be removed by the very habit of submission in 
the people, or they may be disdained by the more 
aspiring ambition of the government. The de- 

* Potter's Euripides, in Medea. 



POLITICAL POWER. 165 

sire of farther distinction and more absolute 
power, the most insatiable of human passions, 
may prompt to attacks on equality of civil rights, 
while avarice will unceasingly suggest to the ru- 
lers an unfair distribution of the public burdens. 
Against such injuries, those who are excluded 
from the government can have no effectual de- 
fence, but are delivered over to the justice and 
mercy of the privileged orders. 

It is not probable that any public advantages 
should overbalance the evils of depriving a great 
proportion of the citizens of that consideration 
to which they have an equal claim with others, 
and of annihilating the only sure defence of ci- 
vil rights. The public good being the aggregate 
of that of the individual citizens, it is very im- 
probable that the advantages of what is concei- 
ved to be a more regular and orderly form of go- 
vernment should compensate to the great body 
of the people, the sacrifices which permanent 
political inequalities demand. We ought never 
to forget that, in the estimation of justice, the 
advantage of each individual, of the highest, and 
the lowest, is entitled to equal attention ; and 
that in comparison of the people, the privileged 
orders, those who arrogate to themselves all ho- 
nours, authority, and emoluments, are as no- 
thing. 

But even when, withdrawing our attention 
from the separate good of the citizens, we con* 



166 OF THE DISTRIBUTION OF 

fine it to the public acts of the state, there seems 
little reason to conclude that permanent inequa- 
lities of political power can add either beauty, 
efficiency, or order, to the great machine of go- 
vernment. 

If appointments be for life (and this is probably 
the least objectionable kind of permanent ine- 
quality) it is not likely that offices will be filled 
by those who are best qualified to perform their 
duties. Allowing that merit were the only re- 
commendation at a vacancy, and that power 
should produce no unfavourable change on the 
character of the successful candidate, still a per- 
son more fit for the employment may afterwards 
appear, and the state ought not to be precluded 
from the advantage which might be derived from 
his superior talents. The fitness of a candidate 
for an office is merely a matter of conjecture, in 
which there is ample room for error. In private 
affairs, where self-interest prompts to the most 
anxious enquiries, how frequently do we see per- 
sons invested with trusts, of which in a short 
time they prove themselves unworthy ? And 
how much more frequently will such mistakes 
occur in appointments to public offices, usually 
made without the same degree of previous en- 
quiry, and influenced by the state of parties, by 
powerful connections, by temporary popularity, 
and other accidental circumstances ? No reason 
can be assigned why the people should relin- 
quish all means of remedying the errors which 



POLITICAL POWER. \6j 

they may have committed. If they have been 
so unfortunate as to make a bad choice, is it rea- 
sonable that, in place of correcting it by the sub- 
stitution of a more proper person, they should, 
for a length of time, allow the duty to be ill per- 
formed ? Experience having shown that the me- 
rits of the candidate had been ovei'rated, or his 
defects overlooked, ought the public interests 
to suffer during a, succession of years, from an 
appointment originating in error or deception ? 
Even if the person be elected, who at the time is 
the most deserving, no one can answer for his 
future conduct. The virtue of his past life is 
no security for his future integrity ; far less 
is his former activity any pledge of his con- 
tinued exertions. He may have stood against 
former allurements of idleness and pleasure, only 
to fall before a greater temptation : In an un- 
guarded moment, he may be led into some er- 
ror or crime, which, bringing others in its train, 
may sap the foundation of his morals, and bear 
down all opposition from his virtuous principles 
and habits : He may be seduced by enjoyment ; 
he may sink into indolence ; he may open his 
mind to ambition ; he may be corrupted by ava- 
rice ; or the strength of his body, and the ener- 
gy of his mind, may be withered by disease. Is 
it just or prudent that the state should be placed 
in such a situation, as to suffer by the vices, the 
weaknesses, and even the misfortunes of her ci- 
tizens ? 



168 OF THE DISTRIBUTION OF 

Hitherto we have considered those who are 
raised over their fellow-citizens by appointments 
to offices during their lives, as liable only to the 
ordinary failings of men ; but this very pre-emi- 
nence has a strong tendency to relax their exer- 
tions, to deaden their patriotism, and to corrupt 
their integrity. That activity, which was excited 
by the prospect of advancement, will often lan- 
guish when the object has been attained ; and 
he whose efforts seemed to be interrupted by no 
amusement, subdued by no fatigue, when esta- 
blished for life in a lucrative or honourable si- 
tuation, will frequently give way to an indolence 
apparently foreign to his character. Nor is this 
the worst evil that can be apprehended. A per- 
son, entrusted with permanent power, is in a si- 
tuation entirely different from that of his fellow- 
citizens. His interest is no longer identified 
with that of the public. What is hurtful to the 
state may be advantageous to himself, or may 
increase the power and splendour of the office 
which he holds. His thirst of riches, his desire 
of authority, his attachment to the privileges of 
his office, may all be in opposition to the general 
welfare ; and the fears of forfeiting public con- 
fidence, and of being degraded from his ho- 
nours, having been removed, the dictates of 
self-interest will stifle the remonstrances of du- 
ty. We cannot open the page of history, we 
cannot look round to what is passing in the 



POLITICAL POWER. 16*9 

world, without being disgusted with crimes ori- 
ginating in the selfish motives of men in power. 
Sometimes the hard-earned reward of industry- 
is snatched from the labourer to feed the riot of 
luxurious indolence ; sometimes the people are 
reduced to ignorance, or plunged in crimes, or 
separated into hostile factions, lest, becoming ac- 
quainted with their rights and duties, they should 
detect the abuses of the administration. Wars 
have frequently been undertaken at the sugges- 
tion of private interest, ambition, or revenge : 
deluges of blood have flowed, and the worst of 
miseries have been entailed on mankind, for the 
futile purpose of adorning a name with meretri- 
cious splendour. 

If such be the disadvantages attending perma- 
nent inequality in its least objectionable shape, 
we may expect the consequences to be far more 
detrimental, when power is entrusted, not to 
those whose former character is known and ap- 
proved, but to classes of men not yet in exist- 
ence, to the proprietors of a certain extent of 
land without reference to their other acquire- 
ments, or to particular families in which all va- 
rieties of intellect and disposition must occasion- 
ally be found. Were the members of the privi- 
leged classes to be educated with their fellow- 
citizens, subjected to the same discipline, and 
stimulated by the same motives, their chance of 
possessing the requisites of office would be no 
greater. The individuals preferred to employ- 



1 70 OF THE DISTRIBUTION OF 

merit from noble birth could, at best, be consi- 
dered as chosen by lot, a mode of election which 
no man is absurd enough to adopt in his private 
affairs. But it is greatly worse than this. Born of 
opulent parents, surrounded in infancy by depend- 
ants, looking forward to honours and to power 
already prepared to grace their manhood, they 
are deprived of the strongest inducements to in- 
dustry and enterprise, while, from their situation 
in life, they are beset with every temptation to 
effeminacy and vice. A few may be impelled to 
exertion by an ardent desire of honourable dis- 
tinction, and some may be prompted by patriot- 
ism to qualify themselves for those offices, on the 
proper discharge of which much of the public 
happiness must depend ; but the great majority, 
satisfied with the rank which descends from their 
ancestors, and yielding to the solicitations of in- 
dolence and pleasure, will be contented to pass 
a life of frivolity, or at best of elegant enjoyment, 
shrinking from those severer studies, which alone 
can qualify them to become the benefactors of 
their country. Of all contrivances, hereditary 
office is perhaps the most effectual, for placing 
the public administration exclusively in the hands 
of those who, by previous education and habits, 
are the least fitted to understand the real inte- 
rests of the country, or to prosecute them with 
assiduity, vigour, and address. 

Nor will a deficiency of talents be the worst 
consequence of establishing hereditary privile- 



POLITICAL POWER. 171 

ges. Persons thus set apart for the exercise of 
power, consecrated to office, and taught to consi- 
der themselves as of a superior nature, must be- 
come accustomed to disregard the happiness of 
their inferiors, when opposed to their own conve- 
nience or to the interests of their order. We can- 
not wonder that those whose education, in place 
of connecting them with their fellow-citizens, has 
impressed extravagant ideas of their own import- 
ance, should employ the power entrusted to them 
for their personal advantage, or the aggrandise- 
mentof that privileged class to which they belong. 
We set up an interest separate from, and sometimes 
opposite to, the good of the nation, and we en- 
trust the conduct of public affairs to those who 
must consider this separate interest as of para- 
mount importance. It is an interest more near- 
ly related to them, and in which a smaller num- 
ber participate ; they have been educated as 
members of a privileged order, rather than as 
citizens of the state ; and if, notwithstanding 
these circumstances, any of them should feel a 
reluctance to undermine public liberty, they 
will be assailed by the importunity of their 
friends, while, in the numbers engaged in the 
same enterprise, they will find a defence against 
that opprobrium which their conduct justly me- 
rits. Hence the observation, confirmed by the 
experience of all ages and nations, that what has 
been called the esprit de corps is regardless of 



172 OF THE DISTRIBUTION OP 

justice, and even of those appearances which in- 
dividuals, however corrupt, are desirous to pre- 
serve. There will at all times be a regular and 
connected system for the aggrandisement of the 
superior ranks, while the opposition to their en- 
croachments can be only occasional and uncom- 
bined. It is highly probable, therefore, that 
these encroachments, though sometimes check- 
ed, will ultimately be successful, and the conse- 
quences must be the decay of general liberty 
and the infringement of equality of civil rights. 
The true ends of government will in time be dis- 
regarded ; it will be forgotten that all political 
power is a delegation in trust from the people ; 
we shall soon hear of the absolute rights of the 
privileged orders to those offices which they have 
been accustomed to enjoy ; till at last, with the 
most daring insolence, it will be asserted that do- 
minion over their fellow-citizens is part of the 
property inherited from their ancestors.* 

Permanent political inequalities do not then ap- 
pear well adapted for securing the primary ends 
of government, the equal protection of the civil 

* Mr Pitt's proposal in 1785 to indemnify the proprietors 
of rotten boroughs, and the indemnification actually awarded 
to them by the Irish parliament in 1800, seem to have pro- 
ceeded on the idea that political power was private property, 
which might justly be employed, not for public, but for pri- 
vate ends. 

The same idea respecting the absolute right to privileges . 
frequently occurs in Mr Hume's Essays, and in his History 
of the Stuarts. 



POLITICAL POWER. 1*73 

rights of all the citizens, and the adoption of 
such measures as are most conducive to the wel- 
fare of the state. When, considering them in 
another point of view, we enquire into their ef- 
fects on the national character, we shall find ad- 
ditional reasons for deprecating their establish* 
ment. 

One of the chief excellencies of a well-regu- 
lated government consists in the improvement 
of the public mind, and the wide diffusion of 
comfort and happiness among the people. These 
blessings, indeed, will flow, in a great degree, 
from the mere protection of civil rights, and 
from allowing each individual to pursue, in peace 
and safety, the measures which he thinks best 
calculated to promote his own welfare. But in 
whatever way these essential duties of admini- 
stration may be executed, much of the public 
prosperity will also depend on the degree in 
which the people are interested in public affairs, 
and prompted, by the form of government, to 
active exertions. 

Man is formed by the circumstances in which 
he is placed. A slave is destitute of every kind 
of intellectual activity ; the freeman, who has 
no prospect of bettering his condition by assi- 
duity or enterprise, sinks into indolence almost 
as great as that of a slave; while from the ci- 
tizen to whom the fruits of his industry are se- 
cured, we may reasonably expect more inge- 
nuity in devising means of increasing his com- 



174 OF THE DISTRIBUTION OF 

forts, and more perseverance and activity in their 
execution. But when a greater field is opened 
for exertion, when every member of the state 
has an opportunity of attracting that notice to 
which he is entitled by his talents, and of rising 
to his just place in the scale of rank and power ; 
in such favourable circumstances, the most stre^ 
nuous exertions of every individual will be se- 
cured, and talents will burst from retirement to 
astonish and enlighten the world. Ambition, per- 
haps the most universal and most powerful of 
human passions, if planted by the public institu- 
tions in the youthful mind, and nourished by 
public applause, by public trust, and by public 
honours, would spread luxuriantly among the 
people, producing diligence, ingenuity, and vir- 
tuous enterprise : but it is crushed before it has 
put forth its leaves, it is blasted the instant it has 
begun to spring. A young man, entering into 
life, surveys the various roads which lead to emi- 
nence : that which is best suited to the ardour of 
a youthful mind, the road of abilities, of general 
usefulness, of services to the state, is barred by 
the establishment of hereditary ranks and of pri- 
vileges unconnected with personal merit: he quits 
it in despair, and loses the best energy of his 
nature. 

All, it is true, cannot be legislators or magis- 
trates, but many could occasionally discharge 
some office in society with honour to themselves 
and advantage to the public 5 while emulation 



POLITICAL POWER. 175 

would enlarge the minds even of the unsuccess- 
ful candidates, and the general interest in public 
affairs would diffuse a spirit of enquiry, a vigour 
of intellect, and an ardent patriotism, throughout 
the nation. Of all advantages which free govern- 
ments possess, this is by far the most important ; 
that powerful motives are held out to vigorous 
and steady exertion, that suitable rewards are 
bestowed on superior abilities and virtue : a ge- 
neral elasticity and energy of mind are the in- 
fallible consequences, and man rises to the rank 
which he is fitted to hold in the creation. 

These observations might be illustrated from 
the history of every nation of the world. It can- 
not be necessary to recur to Greece or Rome, 
and to contrast their enterprise and prosperity 
with the imbecility and degradation of the des- 
potisms by which they were surrounded. The 
same truths are proclaimed by the state of every 
part of modern Europe, To whatever country 
w 7 e refer, the general happiness and prosperity 
seem always commensurate to the degree in 
which public office and honour have been thrown 
open to the people. What other circumstance 
could have raised Britain to the rank which she 
now holds among nations ? What could have 
drained the marshes of Holland, and transform- 
ed a few fishermen into one of the most opulent 
and powerful states of Europe ? What could 
have rendered Switzerland, which seemed mark- 
ed by the hand of nature for sterility, so popu- 



176 OF THE DISTRIBUTION OF 

lous, so happy, and so flourishing ? The causes 
of this prosperity must be sought in the active 
exertions of the people, and these exertions can 
be ascribed only to the lively interest which eve-, 
ry citizen was induced to take in public affairs. 
On the other hand, wherever the people have 
been excluded from all concern with the govern- 
ment, they have become lazy, dishonest, and 
profligate, and in spite of the most favourable 
climate, and the richest soil, agriculture has been 
neglected, the arts of life unimproved, the inha- 
bitants poor, ignorant, and wretched, the state 
without dignity and without force. How has 
Spain declined in industry, in enterprise, and in 
consequence, since the time when the small 
states which she contained, and whose predato- 
ry wars were well fitted to call forth the ener- 
gies of the people, were swallowed up in a des- 
potism, by which even the grandees were redu- 
ced to insignificance ? But it is in Italy that the 
decay inseparable from the loss of liberty is most 
strongly marked by the contrast of former splen- 
dour. The extensive valley around the ancient 
city of Paestum is totally destitute of trees, cul- 
ture, and inhabitants, the ruins of the temples 
being the only indication of past prosperity. 
The once fertile and populous country of Baia, 
the delight of the luxurious Romans, has become 
desolate and unhealthy, though tyranny cannot 
destroy its picturesque hills, beautiful islands, 
and delicious bay : And the campagna of Rome 



POLITICAL POWER. 177 

is a bare unwholesome desart, in which no object 
strikes the eye but the tombs of its former lords, 
and the ruins of those aqueducts which, in hap- 
pier times, supplied the wants of the mistress of 
the world. 

It is true that the greater security of property 
concurs with the just distribution of honours and 
offices in promoting the prosperity of a free coun- 
try. If we consider the subject impartially, we 
shall not ascribe the public welfare to either of 
these sources exclusively. We shall neither un^ 
dervalue the blessings of security and protection, 
nor those of such a degree of political equality 
as is consistent with that security. We shall not 
say with Mr Hume, that, in a civilized European 
monarchy, danger to private property is no more 
to be apprehended from the violence of the so- 
vereign than from thunder or earthquakes, or any 
accident the most unusual and extraordinary ; * 
neither shall we adopt the sentiment of the poet: 

" For forms of government let fools contest, 
" Whate'er is best administer'd is best." 

* Mr Hume's opinion respecting the causes of the inferiori- 
ty in industry and wealth of absolute governments is contained 
in the following passage : 

" Durst I deliver my opinion in an affair of so much uncer- 
" tainty, I would assert, that, notwithstanding the efforts of the 
" French, there is something hurtful to commerce inherent 
u in the very nature of absolute government, and inseparable 
" from it ; though the reason I should assign for this opinion. 
" is somewhat different from that which is commonly insisted 
lt on. Private property seems to me almost as secure in aci- 
VOL. I. M 



178 OF THE DISTRIBUTION OF 

If we turn to those periods in the history of 
the world, when philosophy and taste attained 
their highest perfection, we shall find all the 
eras, in the contemplation of which human na- 
ture may justly exult, introduced by events, 
sometimes happy, sometimes calamitous, but 
uniformly fitted to rouse the utmost exertions 
of man. 

Greece, by her valour, had repelled an attack 
which threatened her destruction, and had freed 
all her colonies from the Persian yoke. But her 

" vilized European monarchy, as in a republic ; nor is danger 
" much apprehended in such a government, from the violence 
" of the sovereign ; more than we commonly dread harm from 
" thunder or earthquakes, or any accident the most unusual 
" and extraordinary. Avarice, the spur of industry, is so ob- 
" stinate a passion, and works its way through so many real 
" dangers and difficulties, that it is not likely to be scared 
<c by an imaginary danger, which is so small, that it scarcely 
" admits of calculation. Commerce, therefore, in my opinion, 
" is apt to decay in absolute governments, not because it is 
" there less secure, but because it is less honourable. A sub- 
" ordination of ranks is absolutely necessary to the support of 
il monarchy. Birth, titles, and place must be honoured above 
" industry and riches. And while these notions prevail, all the 
" considerable traders will be tempted to throw up their com- 
" merce, in order to purchase some of these employments, to 
" which privileges and honours are annexed." 

Essays, Part I. Essay XII. 
To a certain degree this opinion is just. Prejudices against 
the useful professions undoubtedly concur in opposing the ad- 
vancement of nations that have lost their liberty; and these 
prejudices arise, in a great measure, from the establishment 
of privileged orders in the state. 



POLITICAL POWER. 1 79 

prosperity prepared the way for domestic dissen- 
sions ; and it was amidst the intestine wars of 
her several states, amidst factions and conten- 
tions in the most turbulent of her cities, that 
philosophy was cultivated, that poetry, painting, 
statuary, and architecture were carried to their 
highest perfection, and that the most correct 
and elegant taste was generally diffused among 
the people.* 

The Augustan age, preceded by civil wars, 
during which no citizen of Rome could remain 
inactive, closed a succession of sanguinary strug- 
gles in which a vast career had been opened to 
ambition. Nor can the patronage of Augustus, 
beneficial as it undoubtedly was, be regarded as 
the chief cause of the sudden rise of the arts ; 
for at a future time, a succession of princes, un- 
equalled in virtue and in taste, could not, by re- 
wards or distinctions, revive one spark of that 
genius which the nature of the government had 
for ever extinguished.! 

* The general diffusion of good taste among the Grecian 
people is sufficiently proved by the forms of their ordinary 
utensils, as well as by the spirit, elegance, and grace, of the 
figures painted on their vases and walls, by common workmen 
too little skilled to be able to design the more delicate parts of 
the human figure. 

t The assertion in the text is chiefly applicable to poetry 
and philosophy. 

Tile arts of design are much more dependent on the degree 
of national opulence, as well as on the particular habits, whims, 
and fashions prevalent among the great. 



ISO OF THE DISTRIBUTION OF 

The condition of modern Italy, at the time of 
the revival of letters, corresponded, in many par- 
ticulars, with that of Greece. Divided into small 
independent states, torn with intestine factions, 
and engaged in constant wars, she presents a 
scene of the most disorderly confusion, of the 
greatest insecurity of property, and of the most 
profligate policy, at the very moment when she 
was establishing her claim to the gratitude and 
admiration of the rest of Europe. 

The patronage of Francis the First was scarce- 
ly able to kindle in France a ray of that splen- 
dour of talent, which, after a succession of reli- 
gious controversies, factions, massacres, and ci- 
vil wars, burst forth to enlighten and adorn the 
reign of Louis the Fourteenth. 

In England, the discussions arising from the 
change of religion, animated by vain and ineffec- 
tual persecution, suddenly called forth a strength 
of talent which has seldom been surpassed. Soon 

When once carried to perfection, too, these arts are more 
easily compared with their archetypes in nature, and are con- 
sequently less exposed to very rapid decay. — Hence, the pa« 
tronage of Trajan, Hadrian, and the Antonrnes, was more suc- 
cessful in preserving sculpture and painting from decline, than 
in reviving the genius of poetry, eloquence, or philosophy. 
« The name of poet," says Gibbon,* " was almost forgotten ; 
« that of orator was usurped by the sophists. A cloud of cri- 
" tics, of compilers, of commentators, darkened the face of 
«' learning, and the decline of genius was soon followed by 
" that of taste." 

* Hist. Chap. II, 



POLITICAL POWER. 181 

after, the disputes between the king and people 
so entirely engrossed the attention of the nation, 
as to deprive less important objects of all their 
interest : But neither could the austerity of the 
puritans, the degrading profligacy of the court 
of Charles the Second, nor the bigotry of his 
successor, prevent the energy of mind excited 
by the civil wars, from producing its usual effect 
on national literature and taste ; and accord- 
ingly the reigns of William and of Anne, by 
which those political struggles were terminated, 
have been very generally considered as the Au- 
gustan age of Britain. 

In all these splendid eras, the circumstances 
of the times created talents, and stimulated exer- 
tions, which extended themselves from the fields 
of politics and war, to every branch of science 
and of art. Sometimes, no doubt, the charms of 
literature, of taste, and of philosophy, were but a 
trifling compensation for the evils by which they 
were preceded ; and not unfrequently, their de- 
cay was the speedy consequence of the unfortu- 
nate termination of those struggles to which they 
owed their birth. In both of these particulars, 
the encouragement afforded to talents, by the 
institutions of a free but regular government, 
are greatly superior to the incitements of civil 
commotion. The movement impressed upon the 
public mind is not indeed so strong, but, whilst 
it occasions no private misery, disturbs no esta- 
blished order, and leads to no eventual tyranny, 



1 82 OF THE DISTRIBUTION OF 

it is, in its own nature, much more salutary and 
lasting. The one may be compared to a corrus- 
cation which dazzles and disappears ; the other 
is a calm and steady light, gradually increasing 
in brilliancy, and carrying in itself no principle 
of decay. 

If, then, permanent inequalities of political 
power are not founded on natural justice, if they 
prevent the most proper persons from being em- 
ployed in the public service, if they endanger 
equality of civil rights, and narrow the incite- 
ments to mental exertion, their general opera- 
tion must be unfavourable to the dignity and 
happiness of man. In appreciating any particu- 
lar institution, this truth should never be disre- 
garded, though the general rule to which it leads 
may occasionally be forced to yield to some 
great and peculiar advantage attending the in- 
troduction of a certain degree of permanent in- 
equality, or perhaps to some danger or evil 
which might be apprehended from the too sud- 
den establishment of a government of perfect 
freedom. 



POLITICAL POWER, 1 83 



SECTION II. 

Of permanent Political Inequalities, founded on Merit, 
Riches, and Birth, 

That degree of equality, which, in the last sec- 
tion, we have endeavoured to establish on the 
basis of general utility, as well as on that of jus- 
tice, an equality which rejects all permanent ap- 
pointments to office, and all established privileges 
belonging to particular orders of the citizens, 
has been represented not only as chimerical, but 
as inconsistent with those universal sentiments 
of mankind which may be considered as the cri- 
terion of justice. 

In the rudest state of society, superior strength, 
fortitude, and experience are always productive 
of influence and power. He who can shoot an 
arrow with the surest aim, or endure with firm- 
ness the greatest privations and tortures, or in- 
vent the best stratagem for deceiving the ene- 
my, acquires an undisputed sway in the council 
and in the field. % A*s civilization advances, bodi- 
ly strength and* agility lose their influence, but 
only that it may be transferred to the qualities 
of mind. The differences between the attain- 
ments of individuals .become more remarkable, 
and the place of each person in the scale of 
power more distinctly ascertained. One man 



184 OF THE DISTRIBUTION OF 

passes his time in listlessness or dissipation ; an- 
other acquires splendid accomplishments or useful 
knowledge : the faculties of one seem unequal 
to any connected reasoning ; those of another 
seize, with a force and clearness approaching to 
intuition, the most intricate and abstruse rela- 
tions : one, wholly occupied with his own pur- 
suits, seems insensible to the wants of his fellow- 
creatures 5 another, alive to the best feelings of 
humanity, diffuses prosperity and happiness 
around him. These different men can, by no 
contrivance of government, be rendered equal 
in power. The suggestions of the wise and vir- 
tuous will be received with attention and re- 
spect, their wishes will have the force of laws, 
their advice will sway the public deliberations, 
and authority will be cheerfully lodged in their 
hands ; while the opinions of the ignorant, the 
selfish, and the profligate will be neglected, them- 
selves despised and disregarded. Were it possi- 
ble to equalize the political authority of men so 
unlike each other, is it conceivable that any good 
could arise from such an equalization ? Would 
it not be infinitely better to proportion the power 
entrusted to each citizen to the degree of estima- 
tion in which he is held, and to introduce an ine- 
quality as permanent as the differences on which 
it is founded ? 

. There are other inequalities, likewise acknow- 
leged by the universal consent of mankind, which 
are much more precise, than those derived from 



POLITICAL POWER. 185 

merit ; the inequalities of riches and of birth. 
In rude and disorderly times, wealth, by fur- 
nishing subsistence to dependants and retainers, 
is a direct source of power. When government 
becomes so well established as to prevent private 
wars, and to protect every citizen in the enjoy- 
ment of his rights, this direct power must cease ; 
but the distinctions between the rich and the 
poor are not thereby abolished. He who annu- 
ally expends an ample revenue may still attach 
many to his interests by benefits, and more by 
hopes ; and thus, he may command an influ- 
ence, of a different nature indeed, but equally 
absolute with that which, in other circumstan- 
ces, he might have exerted over his retainers. 
Nor is his influence confined to those, who 
entertain expectations of deriving advantage 
from his wealth : It extends to multitudes who 
have nothing to hope from his liberality. Man- 
kind are dazzled by the splendour of wealth ; 
they admire the conveniencies, the elegancies, 
the luxuries which surround the opulent ; they 
reflect with delight on their powers of diffusing 
happiness, on their opportunities of exciting gra- 
titude ; and, by a natural association, they trans- 
fer to their characters those sentiments produ- 
ced by external marks of opulence, and proper- 
ly the offspring of their own imaginations. If 
wealth has continued long in the same family, 
especially if it be accompanied by distinctions 
originally gained by merit and handed down 



] 8t> OF THE DISTRIBUTION OF 

through a line of honourable men, we even as* 
sociate the splendour and worth of his ancestors 
with the present proprietor, and we find it hard 
to conceive, that he, who is graced with an illus- 
trious descent, should not be superior to the rest 
of men. In place, then, of aiming at a chime- 
rical equality, ought we not to take the univer- 
sal respect for wealth and birth as our surest 
guide ? Is it not reasonable to follow the rule, of 
which mankind, by their external behaviour and 
habitual deference, acknowledge the justice, and 
to proportion political power to those qualities, 
which, while they are capable of the utmost pre- 
cision, may be considered as the natural sources 
of authority ? * 

The remark that most readily occurs respect- 
ing the opinions which have now been stated, is, 
that they confound influence with power, though 

* " Servius Tullius's laws seem equal and reasonable, by 
*' fixing the power in proportion to the property." 

Hume's Essays, Part II., Essay XI. 

That property, and still more birth, were, in Mr Hume's 
opinion, just grounds of political inequality, is obvious from 
several of his other essays, as well as from the general tenour 
of his history. 

Widely different was the opinion of Harrington. The great 
principle of his system is, indeed, that landed property is the 
source of all dominion, and that no government, in which the 
balance of power and the balance of property are in different 
hands, can be permanent : but he considers this necessary in- 
fluence of property as an argument, not for inequality of po- 
litical power, but for the adoption of a species of Agrarian 
Law. See his whole works, but particularly his Oceana. 



POLITICAL POWER. 187 

no two ideas can be more distinct. Political 
power, in no respect affected by the volition of 
those over whom it is exercised, acts in all ca- 
ses according to the degree in which it is exert- 
ed by its possessor ; influence acts entirely on 
the minds of others, determining their volitions 
merely as a motive, always liable to be opposed 
and overcome by other motives : the authority 
of direct power is thus independent of the citi- 
zens ; that arising from influence has no exist- 
ence but in their voluntary acquiescence : power, 
when duly constituted, cannot be resisted with- 
out guilt, obedience to it may justly be enforced, 
and opposition may justly be punished; influence, 
however reasonable, has no such sanction ; it may 
be resisted, if not without blame, yet without a 
crime, submission to it cannot justly be enforced, 
nor can the total disregard of it be punished. To 
Confound ideas so dissimilar can never lead to 
any satisfactory conclusion. The operation of 
various kinds of influence may be salutary, al- 
though direct and permanent authority, even 
if confined to what public opinion would vo- 
luntarily yield, may be both unjust and inex- 
pedient. 

The influence derived from bodily strength is 
confined to the rudest state of society, and even 
then can give no pretension to regular authori- 
ty. Should an individual succeed, by superior 
cunning or strength, in establishing any power 
independent of the will of his countrymen, it 



188 OF THE DISTRIBUTION OF 

would be merely a government of force, an un- 
just usurpation which ought to be abolished. 

Neither does the influence of abilities and vir- 
tue, though it extends to all countries and times, 
form any foundation on which a structure of le- 
gitimate authority can be reared. Were it pos- 
sible, indeed, to designate, by external marks, 
those citizens who excelled in moral and intel- 
lectual attainments, both justice to their merit, 
and a regard for the interests of the public, would 
establish their title to govern their fellow-citi- 
zens. But, in the absence of such distinctive 
marks, how is the comparative merit of different 
candidates to be ascertained ? By what criterion, 
but public opinion, is the most deserving citizen 
to be selected, and how can this choice be faci- 
litated by any exclusive privilege? To guard 
against the promotion of men notoriously unfit 
for office, it may not be unreasonable to require 
some proof of qualification, some evidence of the 
character of a candidate being irreproachable, 
and of his acquirements being such as may ena- 
ble him to perform the duties which he under- 
takes. At the same time, it seems very doubtful 
whether any considerable advantage has ever 
been derived from regulations of this nature. 
Disqualifications can be securities only against 
appointments originating in some singular per- 
version of judgment, for they can exclude such 
only as are so evidently unfit for the office, that, 
without any regulation, they would be rejected 



POLITICAL POWER. 189 

by the common sense of mankind. It may, in- 
deed, be provided, that a convicted criminal shall 
not be preferred to a place of trust ; or that those 
who are destitute of ordinary education shall not 
be employed where learning is indispensable. 
But such restrictions are generally useless, and 
may sometimes be inexpedient, by depriving the 
nation of the services of a man whose natural vi- 
gour of mind much more than compensates the 
defects of his early education* If the power of 
appointment to offices be honestly exercised, 
there can be no occasion for disqualifications i 
and if the fountain of honours and authority 
be corrupt, restrictive regulations will be vain. 
But though such regulations have little claim to 
approbation, they do not seem to be unjust, while 
they exclude no man from office who can be pre- 
sumed to be qualified to perform its duties. 

It is otherwise with privileges attached to 
wealth or family. Assuming what is notoriously 
false, that abilities, and wisdom, and virtue are 
the offspring of ample possessions, or of heredi- 
tary honours, they narrow the field of competition 
for office, exclude many of those who are best 
qualified to serve the state, and diminish the in- 
citements to that activity on which the mental 
improvement of the citizens and the prosperity 
of the nation entirely depend. Even if it were 
true that the general sentiments of mankind 
pointed out the rich and noble as the proper ad- 
ministrators of government, this could afford 

6 



190 OF THE DISTRIBUTION 01* 

no argument for converting their natural infliu 
ence into direct power, but should rather sug- 
gest the propriety of diminishing, by just means, 
inequalities so hurtful to the best interests of the 
state. 

Neither does the influence of wealth and birth 
extend so far as to supply any foundation for 
political inequalities. In the ordinary commerce 
of the world, a certain deference is paid to the 
rich and noble, and he who should withhold 
it, Would be blamed as arrogant, or as inat- 
tentive to the common rules of politeness. Even 
this however must be voluntarily yielded by the 
one party, not imperiously demanded by the 
other ; nor does it extend farther than to exter- 
nal manner, or to compliance in matters of very 
trivial concern. If some carry their admiration 
of rank and wealth so far as to be in a manner 
annihilated in the presence of their superiors, if 
they yield up their judgments to this kind of au- 
thority, and tamely submit the direction of their 
conduct to men neither better nor wiser than 
themselves, such submission, arising from imper- 
fection of character* cannot justly be imposed 
on others, by whose more manly feelings it would 
be indignantly rejected. Those who, dazzled 
by splendour, forget for a time the respect due 
to themselves, to truth, and to virtue, are asha- 
med of their weakness, when, on a review of their 
behaviour, they remember the indignities to 
which they have submitted. Much more are they 



POLITICAL POWER. 191 

disgusted with similar conduct in others ; nor 
are any perhaps louder in their condemnation of 
obsequiousness and servility, than such as are 
themselves despised as flatterers of the great. Un- 
like a virtuous sentiment, which is approved on 
reflection, excessive admiration of opulence and 
rank appears to the rest of the world, and even 
to the sycophant himself, when removed from 
their fascinating influence, contemptible and de- 
grading. 

No author has painted the natural admiration 
which attends the great more elegantly than D'r 
Smith, but none is farther from considering this 
sentiment as allied to virtue. " This disposition," 
says he, " to admire, and almost to worship, the 
" rich and powerful, and to despise, or at least 
" to neglect, persons of poor and mean condition, 
" though necessary both to establish and to 
*f maintain the distinction of ranks and the or- 
66 der of society, is, at the same time, the great 
" and most universal cause of the corruption of 
" our moral sentiments. That wealth and great- 
iC ness are often regarded with the respect and 
" admiration which are due only to wisdom and 
" virtue ; and that the contempt, of which vice 
" and folly are the only prope r objects, is often 
" most unjustly bestowed upon poverty and weak- 
" ness, has been the complaint of moralists in all 
" ages." He adds, " It is scarcely agreeable to 
" good morals, or even to good language, per- 
" haps, to say that mere wealth and greatness, 



1<)2 OF THE DISTRIBUTION OF 

" abstracted from merit and virtue, deserve our 
" respect. We must acknowledge, however, 
" that they almost constantly obtain it ; and that 
" they may, therefore, be considered as, in some 
" respects, the natural object of it." * Is it 
then on sentiments so stigmatized, that we would 
rear the structure of legal authority ? Is it to an 
influence already inconsistent with morality that 
we would give additional power ? Even if the 
sentiment were virtuous as well as natural, if it 
were approved by every man and at all times, in 
the closet as in the bustle of the world, in others 
as in himself, still the direct power might be as 
prejudicial as the mental influence was salutary : 
But when the sentiment itself, unless restricted 
to narrow limits, is immoral and degrading, go- 
vernments founded upon it must be manifestly 
unjust. 

The principle, however, is not more false than 
its application would be impracticable. The in- 
fluence of rank and riches, far from being abso- 
lute, is dependent on so many concomitant cir- 
cumstances, that it can neither be measured by 
the extent of possessions, nor by the antiquity of 
family. It is the result of property and pedigree, 
not standing by themselves, but as joined to the 
personal qualities of their possessor. When ac- 
companied by affability, generosity, and wisdom, 
rank and wealth have an almost unlimited sway 

* Theory of Mor. Sent. Part I. § III. Chap. III. 



POLITICAL POWER. 193 

over the sentiments of mankind ; when connect- 
ed with folly, meanness, profligacy, or rapacity, 
they only point out their possessors to more ge- 
neral contempt, or more bitter execration. No 
nation is yet so thoroughly corrupted, that mere 
wealth can be the measure of the influence of in- 
dividuals, and the prejudices are fast wearing 
away which respected noble birth even in the 
most profligate of men. All attempts, therefore, 
by general regulations, to proportion political 
power to natural influence will ever be abortive. 
In some instances, authority will be confided to 
those who, notwithstanding the extent of their 
possessions, and the splendid line of their ances- 
try, can scarcely guide the opinions of their own 
domestics ; while men less favoured by fortune, 
but indebted to mental probity and vigour for 
an influence almost absolute with their acquaint- 
ances and friends, will be entirely excluded from 
every share in the government of the country. 
Such a distribution of authority must tend to 
destroy that very influence on which it professes 
to be founded ; nor could the one be in any re- 
spect proportioned to the other without having 
recourse, in each case, to an examination of the 
real character of the candidate, or, at least, of 
the opinion entertained of his character by those 
who had opportunities of appreciating his merits 
and defects. Such an investigation is complete- 
ly subversive of all those political inequalities 
which are founded solely on riches or on birth ; 
vol. j. n 



19'i OF THE DISTRIBUTION OF 

It refers to a standard altogether different, that 
of abilities and virtue, with regard to which no 
distinctions of rank can, in any way, assist our 
enquiries. 

Nor is it possible to substitute exclusive privi- 
lege for natural influence, even if that influence 
were independent of personal character. What- 
ever power might be conferred on the rich or 
noble, in place of superseding that influence 
which it was intended to represent, would in 
truth be an addition to it, and therefore unsup- 
ported by the natural sentiments of the world. 
It is not surely by joining direct power to wealth 
and rank, that the admiration of mankind is to 
be moderated, or their deference to the wishes 
of the great restrained. It is the idea of power 
that constitutes the most dazzling quality of 
riches ; it is authority transmitted through a long 
line of ancestry that is the most splendid appan- 
age of noble descent ; it is the ability of confer- 
ring favours, an ability increased by every addi- 
tion of political power, which commands the ser- 
vices and support of dependants. Were we there- 
fore to add privilege to privilege, we never 
should succeed in rendering direct power com- 
mensurate to indirect influence, far less in sub- 
stituting the one for the other. Every new in- 
equality would confer a degree of authority be- 
yond what the natural feelings of mankind as- 
cribed to opulence and birth, while, at the same 
time, it would become an argument for farther 



POLITICAL POWER, 1^5 

inequality, till, at last, by the action and re-ac- 
tion of influence and power, the most complete 
despotism would be established. The influence 
of birth and riches, dependent as it is on men- 
tal qualities, is of the most essential service to 
society; but all attempts to convert this influ- 
ence into political right, by rendering it the ba- 
sis of exclusive privilege, are as destitute of sup- 
port from the uncorrupted feelings of mankind, 
as they are unfavourable to the improvement of 
the citizens, and prejudicial to the welfare of the 
state. 



SECTION III, 

Of the Representation of the People, 

Principles of government, however just in 
themselves, must in practice be cautiously ap- 
plied. Not that here, any more than in mecha- 
nics, that which is true in theory, can ever be 
false in fact : But general rules necessarily pro- 
ceed upon general observations and extensive 
vjews, disregarding small or accidental circum- 
stances, by which those rules must, in particular ; 
cases, be modified, and sometimes altogether set 
aside. Yet the uses of general principles, which 



\Q6 OF THE DISTRIBUTION OF 

may be considered as the digest of human expe- 
rience, are most important. If there be no speci- 
alty, the rule ought to be applied : if there be a 
specialty, the peculiar circumstances must be ri- 
gidly examined, and their consequences accu- 
rately ascertained. In all cases, rules, previously 
established by extensive observation, greatly fa- 
cilitate our enquiries, by suggesting what is usu- 
ally just and proper, and thus materially narrow- 
ing the field of investigation. 

Of this nature, is that principle, which was 
examined in the first section of this chapter, that 
permanent inequalities of political power are in- 
jurious. Were we implicitly to follow this rule, 
we should at once come to the conclusion, that 
every species of hereditary power, and every 
privilege attached to the possession of property, 
should be abolished, all elections made by the suf- 
frages of the whole of the inhabitants, and every 
office occupied by those whom their fellow-citi- 
zens, without exception of rank or wealth, re- 
garded as best qualified to perform its duties. 
But as the characters of men are formed by their 
situations, and as a certain degree of informa- 
tion and virtue is requisite to the due discharge 
of the functions of an elector, it is necessary, 
before applying this rule to the government of 
any particular nation, to examine the consequen- 
ces which, in the actual state of the people* 
might be expected to ensue, and to modify the 
principle, whenever it seems probable that its 



POLITICAL POWER. 1^7 

practical application^would be injurious to either 
of the primary objects of government, the hap- 
piness of the citizens, or the prosperity of the 
state. 

From the establishment of universal suffrage, 
that is, of the right of every inhabitant, arrived 
at a certain a£e, to vote in the election of the 
representative assembly, the grossest injustice 
and most dreadful anarchy have been apprehend- 
ed j and if such fears be well founded, he must 
be a sturdy advocate for general principles who 
will contend, that a rule, originating solely in 
utility, ought, at such a risk, to be maintain- 
ed. Between the rich and the poor, it has been 
said, there is a constant and interminable war- 
fare ; the former seeking to retain and aug- 
ment the advantages which they possess, and 
the latter, to participate in those comforts and 
luxuries which are exposed to their envy* but 
denied to their desires. Between these natural 
enemies, the natural means of attack and defence 
are by no means equal ; but while political power 
is confined to the weaker party, while the great 
machine of government is chiefly, if not exclu- 
sively, directed by men of property, all unjust 
attacks from the lower orders may be success- 
fully resisted, and the desire of acquiring wealth, 
by a shorter road than that of industry, effectual- 
ly repressed. Were this defence of the rich to 
be wrested from them, and the poor indiscrimi- 
nately admitted to the right of election, the 



198 OP THE DISTRIBUTION OP 

barriers of property would at once be broken 
down, the legislation would be entirely in the 
hands of the lower orders, who must far outnum- 
ber their superiors, and the laws, in place of be- 
ing the support and protection of industry and 
wealth, would soon be converted into engines 
of plunder and devastation. 

These apprehensions, if just, would be deci- 
sive of the question ; but they seem to arise 
from a very inaccurate survey of the present 
state of society. Men are, by no means, divided 
into two great classes, the rich and the poor, 
perpetually arrayed against each other. On the 
contrary, society consists of insensible gradations, 
rising from the lowest to the highest station, 
and connected together in such a manner that, 
opinion having an easy and rapid circulation 
through the whole, the real, and usually the ob- 
vious, interests of the majority are identified with 
those of the state. Portions of the people, in- 
deed, suffering under some heavy, though per- 
haps unavoidable, calamity, or roused by into- 
lerable oppression, may occasionally trample on 
justice, and in their fury aggravate the very evils 
of which they complain. While their families are 
starving around them, they may seize by unjust 
force on the means of subsistence ; or, throwing 
off the restraints of order and of law, whether in 
consequence of real or fancied provocations, 
they may plunder or destroy the property of 
those who are obnoxious to their rage. But 



POLITICAL POWER. 199 

widely different are such temporary storms from 
any deliberate combination to enforce measures 
equally inconsistent with the plainest principles 
of equity, and the most obvious interests of every 
order in the state. Nor, if thepeople should at any 
time be so far misled as to entertain designs hos- 
tile to industry, and to what is it at once its ob- 
ject and its consequence, the accumulation of 
wealth, is it at all probable that they could ulti- 
mately prevail against the better judgment and 
private interests of every enlightened citizen. 

The lowest orders of society, from whom only 
attacks upon property are to be feared, though 
they may occasionally be tumultuous, are pre- 
cluded by their situation in life from exercising 
any continued or combined control over the 
measures of government. Scattered over the 
country ; occupied from morning to night in the 
care of procuring subsistence for themselves and 
their families ; equally destitute of the know- 
ledge of mankind, and of the practice requisite 
to the skilful management of an ill-combined 
faction ; liable at every moment to be betrayed, 
and to have their adherents drawn off by the al- 
lurement of immediate advantage, or the hope 
of future reward ; with such difficulties to en- 
counter, they can never become formidable to 
those who, with justice on their side, are in a 
condition to employ time, knowledge, address, 
flattery, corruption, and terror, in their own de- 
fence. 



£00 OF THE DISTRIBUTION OF 

Nor could the number of those, even in the 
subordinate ranks of life, who might at any junc- 
ture expect advantage from disorder and injus- 
tice, be so great as to occasion well-founded 
alarm. The industrious workman would readily 
perceive that the overthrow of property, though 
to him it might be attended with some imme- 
diate benefit, must ultimately diminish his com- 
forts and ruin the peace and security of the coun- 
try ; that it would substitute a very precarious 
possession of a few luxuries, for that regular em- 
ployment, by which, with economy and indus- 
try, he may gradually raise himself to comfort 
and respectability. He would not easily be in- 
duced to sacrifice his principles of morality, as 
well as his peaceful habits, to prospects so little 
alluring ; but would employ his influence with 
his less virtuous neighbours, and, if necessary, 
his personal exertions, in combating measures 
cruel to the rich, ruinous to the state, and at best 
of very temporary and precarious benefit to the 
poor. It could only be by the most idle and 
profligate of the labourers, that designs incon- 
sistent with security of property could be enter- 
tained, and surely neither their talents nor their 
numbers could be very formidable to a well-go- 
verned state. 

Those who have felt such apprehensions from 
the indiscriminate admission of all the citizens 
to the elective franchise, must have overlooked 
the various sources of influence, which, springing 



POLITICAL POWER, 201 

from wealth, pervade every class of the inhabit- 
ants. The propensity of mankind is not to un- 
dervalue the advantages of riches, but to look 
up to the opulent as to a superior order of be- 
ings, to feel abased in their presence, and to con- 
sider their wishes as commands which it were 
presumptuous to disregard. Every person, too, 
has acquaintances of a rank somewhat supe- 
rior to his own, whose conversation he esteems 
an honour, whose manners, expressions, and 
ways of thinking he is apt to imitate, and for 
whose opinions he feels the highest respect. In 
his turn, he is a pattern for his inferiors ; and 
thus the maxims of the great and powerful are 
diffused throughout a nation, and implicitly 
adopted by all who have the very common am- 
bition of being thought fashionable and polite. 
" La prevention du peuple en faveur des grands," 
says a very accurate observer of human charac- 
ter,* " est si aveugle, et l'entetement pour leur 
ff geste, leur visage, leur ton, et leur manieres si 
" general, que s'ils s'avisoient d'etre bons, cela 
" iroit a l'idolatrie." To all this must be added 
the direct influence which the employer has over 
his workmen, an influence greater or less, no 
doubt, according to the demand for labour, but 
at all times very powerful, when the character 
of the master deserves respect, or when his be- 
nevolence inspires his dependants with gratitude. 

* La Bruyere. 



202 OF THE DISTRIBUTION OF 

If we farther consider that the representatives, 
in whatever manner they may be elected, will in 
general be men of property, who, notwithstand- 
ing any promises they may have made during 
their canvass, will, as legislators, be sufficiently 
attentive to their own interests, and that, in eve- 
ry well-constituted government, there must be 
checks on precipitancy sufficient to prevent any 
important measure from being carried by sur- 
prise, w T e shall see little reason to fear that uni- 
versal suffrage would lead to anarchy, or to any 
attack on the right of property. But it is not 
equally clear that it would not give rise to evils 
of a very different description ; to bribery, to 
general corruption of morals, and, through them, 
to the exclusive possession of office by the rich, 
and to an undue preponderance of the executive 
branch of the government. 

To a man who earns his subsistence from day 
to day by the work of his hands, a trifling sum 
of money, by which he may either support him- 
self for a short time in idleness, or procure some 
gratification otherwise placed beyond his reach, 
must be a temptation extremely difficult to re* 
sist. Ignorant, in a great measure, of the me- 
rits of the several candidates, imperfectly, if at 
all, informed of the views and principles of the 
political parties with which they are connected, 
uneducated in his duties as a citizen, scarcely 
aware of the evils of corruption, and kept in 
countenance by the example of many among 



POLITICAL POWER. 203 

his neighbours, his friends, and his superiors, he 
can have few motives of duty or honour suffi- 
cient to overcome the temptation of immediate 
ease, and of what, compared to his present indi- 
gence, will appear immediate affluence. In such 
circumstances, his morality will most probably 
reach only to fidelity to his engagements, while 
these engagements will be contracted from pe- 
cuniary considerations. 

In aid of direct bribery, canvassing, drinking, 
and rioting will be employed; and that there may 
be no chance of a member being returned merely 
from respect to his character, recourse will be 
had to a thousand frauds, which, from the obscu- 
rity of the electors, it will always be expensive, 
often impossible, to detect. Some, who might 
scorn to sell their votes, may be carried along 
by an active canvass, by continued debauchery, 
or by the bustle and acclamations of a mob : the 
time of an election will become a period of 
drunkenness, riot, and confusion, from which 
the quieter and more respectable citizens will 
turn with disgust : and the representative will 
be chosen almost exclusively by the lowest of 
the people, not because even to them he appears 
the most deserving candidate, but on account of 
his profusion, his talents at amusing a mob, or 
his influence over a venal press. From an election 
so conducted, a candidate, however high his cha- 
racter may be for talents and virtue, unless he 
be possessed of equal wealth with his opponent, 



204 OF THE DISTRIBUTION OF 

must despair of success ; while a stranger, a fool, 
or a knave, may triumph in what will falsely be 
called the choice of the people. 

Universal suffrage, then, in attempting to ex- 
tend political privileges to the whole of the in- 
habitants, deprives the middling classes of that 
weight in the government which is essential to 
the public welfare, without bestowing any real 
power on the lower orders ; and, in pretending 
to reject every species of legal qualification from 
property, it in fact confines the choice to those 
who are possessed of enormous fortunes. 

Nor does the evil stop at establishing an aris- 
tocracy of wealth. In the great market of cor- 
ruption, the executive government, in whatever 
way it may be constituted, and however much it 
may be checked in the disposal of public money, 
must possess innumerable advantages above all 
private adventurers. If we should conceive it 
impossible to employ any part of the public re- 
venue in the immediate purchase of votes, the 
government candidate must still have great supe- 
riority over every opponent. Patronage would 
always be a most powerful auxiliary to his purse ; 
he would have the certainty of being indemnified 
by some lucrative office for the expenses of his 
election, which, however profuse, he might re- 
present either as unavoidably incurred in support 
of the administration, or at least as the most con- 
vincing proof of his attachment and zeal ; and 
he might call on all the dependants of government 



POLITICAL POWER. 205 

for their most strenuous exertions, aware, as they 
must be, that any backwardness on their part 
might oppose an invincible obstacle to their far- 
ther advancement. Should a candidate, after all, 
be returned in opposition to the court, it will be 
at an expense which ruins his fortune, or at least 
involves him in difficulties and debts. Accustom- 
ed to a certain style of living, and exposed to 
additional expense by his residence in the capi- 
tal, we cannot be surprised that he should shrink 
from rigid economy equally inconsistent with his 
consequence in the world, and with all his former 
habits and ideas. An obvious mode of retrieving 
his shattered fortunes is presented in ministerial 
dependence ; and the desertion of his party, and 
sacrifice of his political opinions are unhappily 
too common to brand his character with disgrace. 
The frequency of such apostacy will at length ex- 
tinguish all belief in the existence of public vir- 
tue, all confidence in the most solemn engage- 
ments of public men ; patriotism will be looked 
upon as a pretence scarcely fit to cheat the vul- 
gar, as a form of words which established usage 
may require, but to which no man of common 
penetration attaches any serious import. In such 
a laxity of public morals, checks may be added 
to checks, forms accumulated on forms, but af- 
ter all our contrivances, the orders of govern- 
ment will be absolute, and the public welfare 
sacrificed to the passions, interests and aggraiu 
dizement of the men in power. 



206 OF THE DISTRIBUTION OF 

It has been thought that the evils of universal 
suffrage might be mitigated, or perhaps correct- 
ed, by means of double elections. The people 
though unacquainted with the merits of the se- 
veral candidates, and the political views of oppo- 
site parties, might surely be sufficient judges of 
the probity and good sense of their immediate 
neighbours. They might safely, then, be entrust- 
ed with the privilege, not of choosing represen- 
tatives to the legislature, but of choosing dele* 
gates to a county meeting by which those repre- 
sentatives were to be appointed. Confusion would 
thus be prevented, the office of delegate would 
seldom be sought with such avidity as to occa- 
sion either canvassing or bribery, and the election 
would be vested in a set of men, holding their 
power by the suffrage of the people, enjoying 
the confidence of their constituents, and above 
all suspicion of ignorance or corruption. In this 
way, it has been thought, order and purity and 
wisdom, even superior to what could be procu* 
red by a restriction of the elective suffrage, 
might be rendered compatible with the distribu- 
tion of some degree of political power among 
the whole of the inhabitants.* 

There can be little doubt that, by such a re- 

* The double election with regard to magistrates and se- 
nators forms part of Mr Hume's Idea of a perfect Common^ 
wealth ; it was | adopted in the constitution of France accept- 
ed by the king in 1791, and was approved of by Sir James 
Macintosh in his Vindicia Gallicce. 



POLITICAL POWER. 207 

gulation, or even by the more simple contrivance 
of taking the votes in subordinate districts, much 
of the confusion of popular elections may be 
avoided; and in so far this plan has a decided ad- 
vantage over county or city polls : But it is not so 
clear that the corruption of elections can, in this 
manner, be materially checked. The division into 
separate meetings to choose electors seems little 
else than an organization by which canvassing 
and bribery would be facilitated; an organiza- 
tion very similar to those divisions into districts 
which convenience suggests to the agents and 
committees of the several candidates. The ob- 
ject, indeed, would not be sufficient to induce 
any man of independent principles and disinte- 
rested views, to aspire to the office of delegate, 
by submitting to the trouble and solicitation of 
a popular canvass ; far less would it lead him to 
squander his fortune in the purchase of votes : 
but those who were either the agents of candi- 
dates for the representation, or who intended af- 
terwards to sell their support to the highest of- 
ferer, might readily submit to labour and ex- 
pense for which they were certain of receiving 
an ample compensation. When the delegates 
met for the purpose of election, it would, in ge- 
neral, be manifest, that they had not been selects 
ed on account of their wisdom or virtue, but 
either in consequence of an active canvass, with 
the intention of selling in one place what they 



£08 OF THE DISTRIBUTION OF 

had bought in another, or as the declared parti- 
zans of particular candidates, by whose influence 
they had been nominated, and whose interests 
they were bound to support. 

If universal suffrage were established, the only 
check on corruption would be found in the num- 
bers of the electors, which might sometimes raise 
too high the expense of bribing a majority. But 
a system of double representation would remove 
this check, by rendering it necessary to secure a 
majority in only one more than half of the sec- 
tions. Thus, if there were 5000 voters, and ten 
sections in a count} 7 , in place of having to secure 
2501 voters, a candidate would carry his election 
by bribing 251 in six of the sections, that is, 1506 
voters in all ; and thus the issue of an election 
might be in direct opposition to the declared 
will of a great majority of the electors. 

The improvement resulting from a double 
election would not, therefore, be very material. 
It might correct part of the tumult and disorder 
of the poll ; but it would perhaps increase the 
corruption ; and while it diminished in some re- 
spects the connection between, the representa- 
tive and constituent, it might occasionally secure 
the return of a man, who, without having been 
heard of as a candidate, knew best how to em- 
ploy a sum of money among the delegates on 
the morning of the election. 

If these considerations be just, it seems impos- 
sible to controvert the necessity of such a restrict 



POLITICAL POWER • 209 

tion of the right of suffrage as will withhold from 
those destitute of property every kind of politi- 
cal power. Even to themselves this restriction 
is advantageous. The habits produced by an 
election cannot be expected to terminate with 
the contest. He who has passed some weeks in 
idleness, dissipation, and riot, must find it hard 
to return to coarse fare, perfect sobriety, and un- 
remitting labour. The price of his vote might 
perhaps maintain him for a short time in the en- 
joyment of those indulgences into which he had 
been seduced : but when that was gone, his la- 
bour would be irksome, and his frugal meal with- 
out relish ; part of his wages would be spent at 
the alehouse, and his family would be left with- 
out subsistence. No labourer, who judges fairly 
of his own interests, will regret a disqualifica- 
tion, by .which he is removed from such tempt- 
ations, particularly when he knows that, by in- 
dustry and frugality, he may, in a few years, raise 
himself to the rank of an elector. A restric- 
tion of the right of suffrage, carried no farther 
than to exclude those who depend for their dai- 
ly maintenance on their daily labour, can scarce- 
ly be considered as occasioning any permanent 
inequality. Though establishing a legal distinc- 
tion of ranks, it disappears with regard to each 
individual as soon as he has given proofs of his 
sobriety, his diligence, and his talents ; it exists 
only while it is useful to himself as well as to the 
state, and vanishes the instant he has proved by 
vol, i. o 



210 OF THE DISTRIBUTION OF 

his conduct, that, with benefit to himself and 
advantage to his country, he may be entrusted 
with a certain portion of political power. 

That a restriction of the elective suffrage, 
however, may stimulate, rather than discourage, 
industry, the qualification must be moderate. It 
must be such as to render the voter superior to 
the temptation of a very small bribe, and to prove 
that, if he was not born to the possession of 
wealth, his habits have been sober, diligent, and 
economical ; but it must not be placed so high 
as to prevent the lowest from looking forward 
to its acquisition as the honourable reward of his 
exertions. Whilst it is held out as the certain 
consequence of industry, though it may appear 
an exception to the general rule of equality, an 
elective qualification seems favourable to activi- 
ty, sobriety, and prudence, the great virtues of 
the lower orders ; and it may therefore be con- 
sidered as strictly conformable to those princi- 
ples of utility, which are the foundation of that, 
and every other, beneficial rule of political 
science.* 

* Without pretending to accuracy in fixing qualifications 
according to the principles explained in the text, the follow- 
ing sketch of a system of representation may not perhaps be 
very unfit for the present situation of Great Britain : 

1. Each person who is proprietor of lands valued at 151. a 
year, or has life-interest in lands valued at 25/. a year, or who 
pays, as tenant, 100/. of rent, shall be qualified to vote for 
county members. 



^ POLITICAL POWER. % 1 1 

The functions committed to electors seem, in 
no respect, beyond the information which the 
class immediately above that of labourers may 
be presumed to possess. Were it proposed, as in 
the ancient republics, to submit all public mea- 
sures to their consideration, there might be con- 
siderable danger of rash, ignorant, and prejudi- 
ced decisions. But the duties of electors are far 
different \ requiring no abstract reasonings, no 
accurate knowledge of detail, no very refined 
views of policy 5 but merely such an acquaint- 

2. Each person who is proprietor of houses valued at 20/. a 
year, or who occupies a dwelling-house valued at 10/. a year, 
or who occupies a shop, warehouse, or workshop, valued at 
25/. a year, shall be qualified to vote in towns* 

3. Each town consisting of 300 voters shall send one re- 
presentative, those consisting of 500 voters shall send two, 
and the capital four. The qualified voters of smaller towns 
and villages shall be allowed to vote for the county members. 

4. Each county shall send two representatives, some of the 
larger and more populous being divided into two or more dis- 
tricts, each of which shall send two. 

5. The votes shall be taken on the same day in the several 
parishes or subordinate sections, and, after being there veri- 
fied, shall be transmitted to the county town, or the town-hall 
of the city. 

6. No person shall be allowed to vote, till his name has 
been entered for a year in the roll of the parish in which he 
resides, or where his property is situated. 

The author hopes it is unnecessary for him to add, that he 
is duly sensible of the practical difficulty of such a reform, 
arising from the interest of powerful families on the one hand, 
and the fancied privileges of pot-walloping boroughs and forty- 
shilling freeholders on the other. 



212 OF THE DISTRIBUTION OF 

ance with the characters of the several candi- 
dates as a residence in the neighbourhood, or 
the experience of their former behaviour in of- 
fice, cannot fail to bestow, such an opinion re- 
specting public measures as plain common sense 
is perfectly qualified to form, and* such a general 
attention to what is passing in the world, and to 
the principles of contending parties, as could in- 
terfere very little with the ordinary avocations of 
life. 

It would be folly to pretend that any class of 
men may not occasionally be imposed upon and 
misled. From this misfortune no elective qua- 
lification can be a protection, the higher orders 
being no more exempted from error than the 
great body of the people. But where free dis- 
cussion is permitted, it may fairly be presumed 
that as much ability will be displayed on the side 
of truth as of falsehood, and consequently that 
rio popular delusion will be of long duration. 
Being entirely free from all private interests 
which may warp their judgments, the intentions 
of the middling classes must at least be honest, 
and when this is the case, sound argument will 
ultimately produce conviction. It ought also to 
be observed that, in proportion as the opinion of 
the nation has weight in the appointment of the 
legislature and in the general administration, the 
attempts to enlighten the public mind will be 
more unceasing and more ably directed ; and that 
habits of comparing opposite views and opinions 



POLITICAL POWER. 2 1 3 

cannot fail to diffuse among the inhabitants more 
accurate information, greater perspicacity of judg- 
ment* and superior caution in receiving impres- 
sions from partial statements. 

That a system of representation embracing 
every class of inhabitants above the rank of la- 
bourers, or any other system which the ingenui- 
ty of man might invent, would guard against 
every species of corruption, it might be rash to 
assert : but when the number of voters in each 
town or county is considered, and their circum- 
stances, which raise them above the temptation 
of sacrificing their opinions and consciences for 
a trifling sum of money, it may safely be asserted, 
that bribery, though not entirely prevented, 
would be considerably checked. The advantage 
of acquiring a seat in the legislature would not be 
equivalent to the expense at which, in the ab- 
sence of just claims to the confidence of the na- 
tion, it must be procured ; and if bribery should 
occasionally be employed, when a contest was so 
equal that a few voters might turn the scale, it 
is Hkely, in such cases, that both of the candid 
dates possess that consideration and esteem which 
render them not improper representatives of their 
fellow- citizens. If it were impossible to procure 
a return chiefly by corruption, a field tolerably- 
fair would be opened for the display and reward 
of virtues and talents. He, who was respected 
in his neighbourhood, would at least have many 
advantages over a rival less known or less esteem- 



2] 4 OF THE DISTRIBUTION OF 

ed, and though riches might sometimes give a 
bias in favour of the less deserving candidate, 
yet acknowledged and eminent merit would al- 
ways meet with honourable support, and usual- 
ly with the most flattering success. To aim at 
greater practical perfection would probably be 
in vain. 

It is by no means certain, that we should 
procure a legislature, either more wise or more 
virtuous, by raising the elective qualification sa 
high as to exclude all but the well educated and 
the opulent. The same bribe could not indeed 
command a vote, but the number of electors be- 
ing greatly diminished, and coasequently each 
vote greatly more important, a higher bribe, 
without exceeding the ordinary price of a seat, 
might be afforded. Even where money was re- 
jected, many sources of influence would remain 
in the exclusive possession of the executive go- 
vernment. An office for themselves, their rela- 
tions, or dependants, might be an alluring bait to 
some ; a badge of honourable distinction might 
sway the minds of others ; and even the notice 
of the great, or the flattery of a courtier, might 
frequently outweigh the more respectable mo- 
tives of public duty. The assembly of the na- 
tion would be shut against the most splendid 
abilities, unless accompanied by birth and opu- 
lence, or unnaturally joined to servility which 
can stoop to dependence, or bigotry which 
adopts all the prejudices andpassions of a party. 



POLITICAL POWER. £]5 

Thus, its fair and best reward would be denied 
to merit, the obstacles to promotion would damp 
the most useful and noble species of ambition, 
and the benefit of transcendent talents might be 
lost to the country. The laws dictated entirely 
by the higher orders of the state, would be apt 
to have a tendency impressed upon them favour- 
able to other inequalities of ranks and privileges. 
From ignorance, they might be impolitic; and 
not unfrequently, by their subservience to pri- 
vate interests, they might be oppressive and un- 
just. The government would no longer feel its 
entire dependence on the great body of the peo- 
ple, nor would the people feel the same lively 
interest in the measures of government. Patriot- 
ism would decline throughout the nation ; and 
with it, would be lost the only effectual restraint 
on arbitrary power, and the best incitement to 
enterprise, to research, and to the cultivation of 
all the intellectual and moral faculties of man. 

There have been so few examples in the world 
of representative government, that our infer- 
ences respecting the elective qualification must 
rest on general deductions from the acknowledg- 
ed principles of human nature, rather than up- 
on direct experience. Yet, if we are cautious in 
drawing such conclusions, they may perhaps be 
as well entitled to assent, as if they were the re- 
sult of the experience of individual nations, 
among whom a thousand unobserved circum- 
stances, of situation, customs, character, and, 



216 OF THE DISTRIBUTION OF 

above all, the mode in which wealth happened to 
be distributed through the several classes fb soci- 
ety, might produce effects not incident to other 
parts of the world, to other times, or to other 
manners. 

In America, where there is little of that ex- 
treme poverty which pervades the lower orders 
of European states, where overgrown fortunes 
are almost equally unknown, and where the scat- 
tered population opposes many obstacles to can- 
vassingand corruption, the elective franchise may, 
perhaps, with safety, be extended almost to the 
whole of the inhabitants. Accordingly, in some 
of the states, none but those receiving public 
charity are excluded, while in almost all the 
others, the elective qualification, though to us 
it may appear considerable, yet, from the high 
price of labour, and the low price of land, is in 
reality equivalent only to a few weeks or months 
wages of a common workman. 

The attempt in the constitution of France, 
1791, to establish what approached very near to 
universal suffrage, operating through a double 
election, can scarcely furnish any fair grounds 
for judging of the effects of such an institution 
in the midst of a crowded population and extreme 
inequality of property. In the irritated state of 
the public mind consequent on a disorderly, 
though at that time not a sanguinary, revolution, 
by which many inveterate abuses and some use- 
ful institutions had been swept away ; and at a 



POLITICAL POWER. £l7 

moment, when almost every man of rank or 
fortune had either deserted his country, or was 
looked upon with a jealous eye ; in circumstan- 
ces, too, of peculiar danger from the enmity of 
foreign powers, leagued with internal discontent, 
and feebly opposed by an administration suspect- 
ed of favouring every plan of counter-revolution ; 
in the infancy of a new government, when the 
people were naturally intoxicated with power 
which they had never ventured to contemplate 
even in idea; in such peculiar circumstances, 
we cannot wonder that the popular choice fell 
on men who were conspicuous for their zeal 
rather than their judgment, who participated in 
the prejudices, the jealousies, and the violence 
of the mob, and whose consideration w r as indis- 
solubly connected with the authority of the lower 
orders of the people. Had this system of repre- 
sentation survived the violence of the revolution, 
it would probably, in more peaceful times, have 
exhibited very opposite appearances : consider- 
able riot and disorder during the elections, very 
general corruption, irresistible influence attach- 
ed to wealth, and the infallible consequence of 
this influence and corruption, an indirect, but al- 
most absolute, authority in the crown. 

How shall we characterise the representation 
of Great Britain ? In one place, what nearly ap- 
proaches to universal suffrage ; in another, an 
election by a junto ; in a third, a nomination by 



218 OF THE DISTRIBUTION OP 

an individual ; here an immense population with- 
out representatives, and there a number of re- 
presentatives without any population. Hope- 
less as the task might appear, such a system has 
not been without apologists, nor even without 
much eloquent commendation. The variety of 
elective franchise has been defended as condu- 
cive to equality of laws, by ensuring a portion of 
the representation to every class and description 
of the inhabitants ; and even the open venality 
of boroughs has been represented as securing 
admission into the national assembly, to those, 
who, although their family connections or here- 
ditary influence might be too insignificant to pro- 
cure them a seat otherwise than by purchase, feel 
sufficient confidence in their own abilities to ex- 
pend part of their patrimony on this mode of ad- 
vancement. Whatever ingenuity there may be, 
in these and similar apologies, arises from a very 
superficial view of the real consequences of the 
system ; on a closer inspection, many of the ap- 
parent varieties disappear, and the effects of such 
as remain are found to be much more uniform 
and harmonious than might have been expected. 
A hundred members are nominated, in vari- 
ous modes, by about live hundred peers and opu- 
lent commoners ; a decided majority of the Eng- 
lish members (and certainly the Scotch and Irish 
do not hold their seats by a more independent 
tenure) are returned by about iive thousand 






POLITICAL POWER. 219 

electors,* whose choice, it may be no breach of 
charity to suppose, may sometimes be determi- 
ned by motives very different from the love of 
their country ; what are called pot-walloping bo- 
roughs may be considered, as partly disposed of 
by the ancient mode of acclamation, partly by 
the more modern device of public auction ; the 
seats belonging to individuals which are fairly 
offered to sale are either burthened with an obli- 
gation to vote according to instructions, or dis- 
posed of at a price unsuited to a moderate for- 
tune ; and a contest for a county is ruinous even 
to a princely estate. All the powers of parlia- 
ment are therefore vested entirely in the rich, 
in the noble, and in a few adventurers who ex- 
pect to make a lucrative traffic of their seats in 
the legislature ; while talents, however eminent, 
if joined to independence of mind, and unaccom- 
panied by wealth, are excluded from every share 
of public honour and of public power. The con- 
sequences have been such as were to be expect- 
ed. A majority consists of men deficient in 
knowledge, abilities, and industry, who consider 
their seats merely as an appendage of their rank, 

* See the petition to the House of Commons presented by 
the society of Friends of the People in 1793, and the state of 
the representation reported to that society and published by 
them. This state, which names the several patrons and the 
seats to which they nominate and recommend, seems to be 
drawn up from accurate information, and I believe has never 
been directly controverted. 



220 OF THE DISTRIBUTION OF 

and their attendance as a drudgery by which 
they must earn the favours of administration ; 
and the representatives of the commons, in place 
of being watchful guardians of liberty, and en- 
lightened promoters of the public welfare, are 
dwindled to court dependants, supporting indis- 
criminately whatever minister his majesty may 
be pleased to appoint, and approving obsequi- 
ously of whatever measures that minister may 
be pleased to propose. 

That any advantage can be derived from an as- 
sembly so constituted, may, at first sight, appear 
improbable ; and we may even be apt to suspect 
that the semblance of public enquiry and approba- 
tion, by screening administration from contempt 
and indignation, may be directly injurious to the 
state. But farther consideration will satisfy us that 
many and important advantages are inseparable 
from popular representation, even when most 
defective. To open a theatre for displaying the 
acquirements and talents of the higher orders, 
is to prevent them from sinking into that imbe- 
cility and languor to which those habituated to 
indulgence, unless they be stimulated by honour- 
able ambition, are so much exposed. To submit 
all proposed laws to the criticism of the oppo- 
nents of the court, may often be the means of de- 
tecting errors in reasoning or in fact which had 
escaped the notice of administration. To re- 
quire the sanction of a numerous assembly t© 



POLITICAL POWER. 22 1 

new enactments, and to all important measures of 
government, is to secure the nation against such 
attacks on civil liberty, as cannot easily be com- 
pensated to representatives, educated among 
their fellow-citizens, chosen from the people, 
subject to all the laws which they authorise, and 
depending, in some measure, for public esteem 
on the tenour of their public conduct. Above 
all, to discuss every principle of government and 
every act of administration in a public assembly 
must interest and enlighten the citizens, keep- 
ing alive those ideas of freedom which, however 
delusive in as far as political rights are concern- 
ed, produce a general attention to public affairs, 
an ardent attachment to the welfare and glory 
of the country, and an elevation of mind which 
will neither submit to personal insults, nor to 
any open outrage on the security of the citizens, 
the national honour, or the constitution of the 
state. 

These advantages might obviously be enjoyed 
in a much superior degree, if the inequalities in 
the system of representation were corrected, and 
thereby the influence of wealth diminished. It 
is the more necessary to give the great body of 
the people a real, not an illusive, power in the 
nomination of representatives, as this is the only 
mode in which they can safely be permitted to 
exercise an effective control over the measures 
of government. The moment the elections are 
over, their power ought to be at an end, Ha r 



£22 OF THE DISTRIBUTION OF 

ving returned those members to the legislature 
in whom they have confidence, any further inter- 
ference on their part ought to be by petitions, 
not by instructions or commands. To oblige the 
representatives to obey occasional directions, is- 
sued by their constituents, would be to relin- 
quish the chief advantage of representative go- 
vernment ; to subject wisdom to folly j to multi- 
ply laws, founded on partial, and perhaps in- 
consistent views ; to pave the way for unceasing 
and wanton innovations ; and finally to drive 
from the great council of the nation all men of 
independent minds, who could neither stoop to 
mould their opinions on the passing fashions of 
the day, nor submit to be the mere channels of 
sentiments occasionally puerile, and sometimes 
injurious to the public weal. 

Were the right of binding the legislators by 
instructions to be acknowledged by the constitu- 
tion, it were vain to expect it to lie dormant in 
ordinary cases, to be used only on great and sig- 
nal emergencies. Every reformer whose schemes 
were rejected by the legislature, every quack in 
government or finance, every person desirous of 
abrogating, or of adding to, any branch of the 
civil or criminal code, would apply directly to the 
people, and endeavour, by partial statements, to 
procure instructions on subjects, which they 
never could fully understand. The representa- 
tives would dwindle to mere reporters of the 
opinions of others, having no occasion to debate 



POLITICAL POWER. 223 

where they were not permitted to decide ; the 
frequency of popular meetings would interfere 
with the ordinary employments of life, and, by 
the influence of demagogues, destructive mea- 
sures might be rashly adopted, while, still more 
frequently, what was really conducive to the pub- 
lic welfare might, from mere restlessness, or from 
a timidity alarmed by first difficulties, be precipi- 
tately abandoned. 

It is no doubt true, that representatives may 
act in a manner at once contrary to public opi- 
nion and injurious to the state. They may enlist 
themselves under the banners of a faction, and 
view every measure through a distorting medi- 
um ; they may allow practices to creep in of 
which they expect afterwards to avail themselves; 
or they may protect abuses from which their 
friends derive emoluments ; they may support 
an unjust war from deference to the passions of 
the sovereign ; they may connive at an influence 
subversive of freedom ; or they may even con- 
cur in an open attempt to abridge the liberties 
of the people. But the true check on all such 
errors, corruptions, and abuses, is to be found 
in the frequency of elections, not in the authori- 
tative instructions of constituents. 

The people, though liable to be misled, and 
unable to comprehend all the varied operations 
of particular laws, are, in most cases, sufficient 
judges of the general spirit of the legislation, and 
the general tendency of public measures. Allow 



*224 OF THE DISTRIBUTION OF 

them frequent opportunities of changing their 
representatives, and they will maintain so power- 
ful a control over the public councils, as to pro- 
tect their liberties from secret treachery or open 
attack. No other means are, in all circumstan- 
ces, adequate to this effect : but wherever its evil 
tendency was discovered, every enterprise hos- 
tile to the people would be rendered abortive by a 
change of the representatives ; and the hopeless- 
ness of success would moderate, if it could not 
cure, the restless fever of ambition. It is not 
to be presumed that, from a mere difference of 
opinion on a few subjects, the electors would 
displace a representative in whose integrity and 
wisdom they could confide ; but removal would 
usually follow any disagreement respecting the 
leading measures of administration, while it 
would be the certain and appropriate punishment 
of the avowal of doctrines inconsistent with li- 
berty, and more especially of any appearance or 
even suspicion of personal corruption. 

Frequency of election would, indeed, be the 
best, perhaps it is the only effectual, security 
against the corruption both of constituents and 
representatives. That seat which was known to 
be of short duration could neither be bought at 
a high price, nor the power arising from it dis- 
posed of to much private advantage. No minis- 
ter could have sufficient offices to bestow on the 
successive representatives elected by the people ; 
nor could any candidate, merely to enjoy an ho* 



POLITICAL POWER. 225 

nour of a very transient nature, throw away upon 
his canvass, a large sum of money, for which go- 
vernment could afford him no equivalent. 

Those who have argued, that, as the rate of pur- 
chase is, in all cases, regulated by the demand, 
the bribes both to representatives and constitu- 
ents would be proportioned to the period (the 
only difference being that they would be paid at 
several instalments, in place of once for all,) seem 
to have forgotten that there is a principle of ho- 
nour and patriotism in man, which, though not 
always proof against a great temptation, would 
spurn with contempt a paltry bribe. In order that 
conscience may be lulled, the great opiate of 
corruption must be administered, not in small 
and successive doses, but with such profusion as 
may at once operate decidedly on the mind, by 
overpowering the sense of shame, and oblitera- 
ting the traces of virtuous resolutions. 

There is a limit, however, within which the 
frequency of election ought to be confined. Be- 
fore his constituents or his country can judge of 
his qualifications for the high office to which he 
has been raised, the representative must be allow- 
ed sufficient time to acquire knowledge of busi- 
ness, to prove his assiduity and independence of 
mind, and to conquer that timidity, by which, 
though an almost inseparable attendant on me- 
rit, the most splendid abilities of those unaccus- 
tomed to address a numerous assembly are apt 
to be obscured. He must have his seat assured 

vol. i. p 



£$6 of the distribution of 

to him for a considerable period, that he may be 
able to mature and bring forward such laws as 
he thinks conducive to the general good ; that 
he may be freed on the one hand from the ne- 
cessity of precipitation, and on the other from 
that of committing the fate of his measures to 
those less interested in their success. For these 
purposes, three years, as fixed in England at the 
Revolution, is probably a short enough time ; 
nor is it likely that a much more frequent re- 
currence of elections would afford better secu- 
rity against the baneful effects of corruption, A 
very temporary seat in the legislature would 
scarcely be an object of ambition, and conse- 
quently he who was once in possession would be 
in little danger of being displaced by a new com- 
petitor. The elective suffrage would even lose 
its value in the estimation of the people ; for 
that which occurs very frequently passes over as 
a matter of course, little attended to, and very 
rarely productive of lively interest. According- 
ly, when elections are annual, they are extreme- 
ly apt to fall into a routine, and the offices, un- 
less on very extraordinary occasions, become in 
reality for life.* 

* In Zurich, and some other cantons of Switzerland, the 
elections were annual ; but it became so much a matter of 
course to re-elect the same person, that the offices might prac- 
tically be considered as held for life. 



POLITICAL POWER. 227 

SECTION IV. 

Of a Senate. 

In whatever manner the great legislative as- 
sembly may be constituted, it seems highly ex* 
pedient that there should be another council, 
smaller in number but equal in authority, where 
alterations of the laws may undergo a second dis- 
cussion before being admitted into the code. 
Numerous assemblies are liable to precipitation, 
to inattention, to delusion, and temporary enthu- 
siasm ; and representatives dependent on the 
people for their re-election are not only influen- 
ced by their own prejudices and passions, butalso, 
in a great degree, by those of their constituents. 
Hence, there is always danger of laws being 
adopted, either hurtful in their own consequen- 
ces, or incompatible with other enactments ; and 
hence a risk of fluctuation in public measures, 
of perpetual innovation in political institutions, 
and of perplexing inconsistencies in the muni- 
cipal code. That all laws should be in con- 
formity to the opinion of the people is an un- 
doubted truth, there being no better criterion of 
their justice and expediency ; but they ought to 
be agreeable to the sober, enlightened, well-con- 
sidered opinion of the people, not to their igno- 
rant prejudices, their rash conclusions from im- 
perfect information, the accidental popularity of 



'228 OF THE DISTRIBUTION OF 

those who propose them, or an enthusiasm exci- 
ted by eloquence, and frequently made the tool 
of ambition. 

It has, indeed, been affirmed, that all the ad- 
vantages of a senate may be obtained, in a single 
house of legislation, by deliberate proceeding 
and repeated discussion.* That these are proper 
and useful, even although there should be a se- 
nate, is undoubted ; but of themselves they do 
not form a sufficient check on precipitancy and 
inattention. Nor is it probable that regulations 
introduced for this end would be scrupulously 
adhered to, unless it were evident that their ne- 
glect in one chamber would be a suspicious cir- 
cumstance, exposing the measure elsewhere to 
more rigid investigation. The legislative body 
being necessarily uncontroled, there can be no 
security that checks, depending entirely on the 
will of one assembly, and in danger of being re- 
moved by a vote when found inconvenient or 
embarrassing, shall in all proper cases be allowed 
to operate. Circumstances must occur in which, 
the delay of even a few days being dangerous or 
prejudicial, it would be folly to sacrifice the pub- 
lic interests or safety to mere forms. In such 
cases, a power will be assumed by the legislature, 
and applauded by the people, of dispensing with 
repeated discussions and the usual delays, and 

* Godwin's Enquiry concerning Political Justice, Book V. 
Chap. XXI. 



POLITICAL POWER, 229 

of proceeding to immediate determination. In- 
troduced on really urgent occasions, the same 
dispensing power will, by degrees, be admitted 
where delay would be less injurious ; it will be 
adopted to meet the impatience of the people, 
when the public mind happens to be agitated ; 
the example will be followed with regard to 
measures so unanimously approved of, that far- 
ther discussion appears superfluous ; till at last 
a decree of urgency, as was practised in the con- 
vention of France, will regularly precede almost 
every enactment, and the restrictions on preci- 
pitancy, though they continue to exist in theory, 
will be disregarded in practice. 

Even if this relaxation of forms could be effec- 
tually guarded against, without at the same time 
compromising the public interests, repeated dis- 
cussions in the same assembly do not give equal 
security for deliberate enquiry and unbiassed 
judgment, with a division of the legislature into 
separate chambers. The influence acquired by 
the general character of the mover of a law may 
ensure it a favourable reception ; a splendid dis- 
play of eloquence may varnish over its defects ; 
or an injudicious opposition, by assailing it with 
false or trivial objections, may lend it accidental 
support. The first reception of a measure fre- 
quently gives a tincture to all succeeding de- 
liberations. The discussion often takes a shape 
which it is afterwards difficult to change ; those 
who have spoken, on either side, form a degree 



230 OF THE DISTRIBUTION OF 

of attachment to the opinions which, perhaps 
without much consideration, they have advan- 
ced ; and such members as have merely voted 
feel a tie on their future conduct, from a re- 
luctance to retract their errors, and, by so do- 
ing, to bear witness to their own deficiency in 
sagacity or knowledge. The mere reiteration 
of debate, therefore, useful as it undoubtedly is, 
will not so certainly detect error, as if the mea- 
sure were to be submitted by new speakers, of 
different acquirements and views, to a new au- 
dience exempt from habitual deference to the 
same individuals, uninfluenced by the same dis- 
play of eloquence, and unfettered by any previ- 
ous declaration of opinion. When to all these 
circumstances, in themselves so favourable to 
impartial discussion, we add that a senate may 
be rendered more independent of the erroneous 
prejudices and temporary delusions of the peo- 
ple, it will be evident that a division of the le- 
gislative body, more or less permanent and com- 
plete, is the most effectual check on rash and fluc- 
tuating counsels, and therefore the surest means 
of attaining to wisdom, prudence, and justice, in 
the enactment of laws. 

The greater part of these advantages may seem 
attainable, if not so perfectly, yet in a consider- 
able degree, by dividing the ordinary representa- 
tives of the people into two permanent sections. 
Every proposal would be canvassed in each j and 
emulation between the separate chambers might 



POLITICAL POWER. 231 

be a sufficient security that measures originating 
in the one would be thoroughly sifted in the 
other. There are dangers, however, which such 
an arrangement could not obviate. Occasional- 
ly some deep-rooted prejudice may obstruct the 
progress of truth, or superior ingenuity and elo- 
quence may, for a time, be displayed in favour of 
error. Against such evils, the division of the 
ordinary representatives into two sections af- 
fords no sufficient protection. The same opi- 
nions will be triumphant in both, and, in a mo- 
ment of popular enthusiasm, mischief may be 
done which it will require great wisdom and 
much perseverance to counteract. 

On this account it is desirable that the senate, 
without having interests separate from those of 
the people, should, as far as possible, be inde- 
pendent of temporary clamour and popular dis- 
content. This may probably be effected, in the 
least objectionable manner, by composing it of 
members, who, from their former services, are 
entitled to general confidence, and, from their 
age, are less liable to enthusiasm or rashness. It 
might, in this view, be a proper regulation that 
no person should be elegible to the senate, till 
lie had completed his fortieth year, and sat in 
the lower house during two parliaments. Such 
a constitution of the senate would not only guard 
against the intrusion of inexperienced and too 
ardent minds, but also hold out the more digni- 
fied rank of a senator, as an object of virtuous 



232 



OF THE DISTRIBUTION OF 



ambition to the representatives of the people* 
This gradation in the scale of public honours 
and public confidence might supply that incite- 
ment to increased exertion, which would some- 
times be wanting to a young man, after he had 
become a member of the representative assem- 
bly, more especially when he had no wish to en- 
ter into administration, and thought it likely that 
his influence, joined to a moderate attention to 
his duties, might secure him in that honour- 
able situation to which he had already attained. 
For the purposes of guarding still farther 
against the effects of delusion, and, at the same 
time, of giving superior dignity to the office, it 
might perhaps be expedient to fix the qualifica- 
tion of a voter in the elections of the senate 
something higher than in those of the house of 
representatives, and to provide, as in America, 
that only one- third of the senate should be re- 
newed at each election. The senators would 
thus be more independent of temporary popu- 
larity, though they would still be sufficiently un- 
der the influence of their constituents, to insure 
the adoption of every measure in favour of which 
the public voice, after due consideration, was 
firmly pronounced ; and even if they should be 
induced, by over-ruling influence, to oppose 
the decided sentiments of the nation, their ut- 
most obstinacy, without ultimately frustrating 
the desires of the people, could merely occasion 
delay favourable to enquiry, and to the more 



POLITICAL POWER. 233 

general diffusion of political truth. Such jarring 
between the senate and the lower house would, 
however, seldom occur. Chosen on account of 
their former services, by a class of their fellow- 
citizens, well qualified to judge of their merits, 
the senators would in general deserve and ob- 
tain that respect from the nation, which might 
enable them to lead, rather than follow, public 
opinion ; and if at any time a majority should 
err through timidity, still more, if they evinced 
any desire of setting up an interest separate from 
that of the state, or the least appearance of be- 
ing swayed by corrupt motives, the renewal of 
one third of the body, by giving a preponder- 
ance to the wiser and more honest members of 
the assembly, would check the progress of abuse. 
Were a senate to be constituted in this man- 
ner, there seems no reason for restricting its de- 
liberations to such schemes of laws, as had alrea- 
dy been approved of by the other assembly. 
Such a restriction would prevent much of that 
emulation between the two houses, from which 
many beneficial consequences might be .expect- 
ed, and preclude that tacit division of the vari- 
ous objects of legislation, by which the public 
service might be materially forwarded. In cases 
requiring considerable attention to detail, or the 
investigation of contradictory evidence, a mea- 
sure might originate with greater propriety, 
where the members were fewer in number, more 
experienced in business, and, from their age, less 



234 OF THE DISTRIBUTION OF 

exposed to the influence of sudden impressions. 
To confine the powers of a senate to a negative 
on the resolutions of the lower house, would 
not only be to relinquish many of the benefits 
of the institution, but to derogate from that 
respectability of the office by which it was ren- 
dered an object of honourable ambition, and to 
prevent any measure from being brought, in an 
impressive manner, before the nation, which, 
however useful to the state, might be disagree- 
able to the leading members of the lower house, 
or adverse to its particular privileges or interests. 
Far less would it be expedient to vest the 
power of originating measures exclusively in the 
senate.* In some ancient republics, in which 
the right of every citizen to decide personally 
on public measures was acknowledged, and where 
the popular assembly was consequently exposed 
to disorder, violence, and faction, the mere pro- 
posal of a law might frequently be attended with 
danger, and the prevention of debate might be 
a necessary defence against innovation or civil 
discord. But where the powers of the people 
are committed to representatives, there seems 
little reason, in ordinary cases, to apprehend ex- 

* In the Oceana, not only the power of proposing laws, but 
also that of debating them, is vested exclusively in the se- 
nate, the house of representatives, or, as Harrington calls it, 
the prerogative tribe, merely adopting or rejecting by a vote. 
The evils of such an institution are pointed out by Hume in 
Jbis Idea of a perfect Commonwealth. 



POLITICAL POWER. %$$ 

cess of restlessness among the legislators, or of 
enthusiasm among their constituents. It is more 
to be feared that real grievances will remain un- 
redressed, than that imaginary ones will be 
sought out, in order that violent remedies may 
be recommended. Should, however, any ill-advi- 
sed measure be adopted by the more popular 
branch of the legislature, it might be annulled, 
without hazard to the public peace, by the ne- 
gative of the senate. To commit the power of 
proposing laws exclusively to the less popular 
branch of the legislature, to that which from its 
constitution is most exposed to timidity, to pre- 
judice against all novelties, and to a corporation 
spirit, would almost be to abandon every chance 
of meliorating the constitution, or of correcting 
those abuses which the lapse of time must inevi- 
tably introduce. Nor could it fail to centre all 
real power in the senate, and unduly to weaken, 
if it did not annihilate, that control of the na- 
tion over public measures, which is at once the 
best security for equal laws, and the firmest 
foundation of the patriotic virtues of a people. 

But while neither of the branches of the le- 
gislature was precluded from originating laws, 
it might be expected that this duty would, for 
the most part, devolve upon the lower house, 
composed of younger men, and more immediate- 
ly dependent on the people. To the senate, 
therefore, might be entrusted other duties un- 
connected with internal legislation. In several 



236 OF THE DISTRIBUTION OF 

branches of the executive power, too important 
to be committed entirely to the discretion of mi- 
nisters, the control of such an assembly might 
be very conducive to the public welfare. Of 
this nature are the ratification of treaties of al- 
liance or of commerce, the great questions of 
peace or war, and the general direction of the 
external policy of the state. If it be left entirely 
to the executive government to arrange and con- 
duct the foreign relations, irremediable mischief, 
ill compensated by any punishment that can be 
inflicted on ignorance or folly, may be done by 
a rash or timid administration. To submit such 
questions to the general body of representatives 
might be attended with delay, with irresolution, 
and with want of confidence on the part of fo- 
reign powers ; while it might lead to the publi- 
city of designs, whose issue depended entirely 
on the secrecy with which they were conducted. 
But a senate, or rather a council of state ap- 
pointed by the senate from its ow r n members, 
might prevent, on the one hand, such errors as 
the administration might be in danger of com- 
mitting, and preserve, on the other, that secrecy 
which not unfrequently is essential to the suc- 
cessful management of public affairs. One great 
and comprehensive scheme of policy would be 
more steadily pursued under such institutions, 
than if the whole system of alliances might be at 
once overturned by the change of a minister, 
the caprice of a favourite, or the misconception 



POLITICAL POWER. 237 

of a popular assembly ; and this stability in the 
counsels could not fail to ensure the confidence, 
attachment, and respect of foreign nations.* 

To some, it may appear that the advantages 
of a senate might be more certainly obtained, 
by continuing the office during life. The mem- 
bers, it may be thought, being more completely 
independent of popular favour, would follow out 
more steadily a liberal system, both of internal 
and external policy, than when exposed to the 
loss of honours and of power, from opposing the 
headlong, though ever-deviating, current of pub- 
lic opinion. But the evils inseparable from the 
appointment to offices during life much more 
than counterbalance these considerations. The 
infrequency of vacancies, and the number of 
competitors for each, though enhancing the ho- 
nour of success, would render the expectation 
of promotion to the senate too weak and distant 
to stimulate, generally, the exertions of the re- 
presentatives ; none could hope to attain so high 
a situation till he was far advanced in years ; 
and a great majority of the senators, arrived at 
that time of life when activity, talents, and, per- 
haps, judgment are necessarily impaired, must 
have exchanged their manly energy of mind, for 
that puny fear of innovation which is apt to re- 
tain the forms, by relinquishing the spirit, of the 

* The most ample illustrations of the secrecy, vigour, and 
systematic conduct of senates, may be found in the histories 
ef Rome, of Venice, and of Holland. 



23S OF THE DISTRIBUTION OF 

constitution. A senate consisting of members 
superannuated, or advancing, rapidly to that de- 
plorable condition, would be inadequate, even 
with the purest intentions, to the proper dis- 
charge of its important duties ; but its inten- 
tions would not long continue pure, and separate 
interests and court-dependence would soon add 
to its other disqualifications the most shameless 
servility. 

Of senators elected for life, some might not 
originally be wealthy ; more might be reduced 
from opulence by misfortunes, by extravagance, 
or by the misconduct of their families ; several 
would become avaricious from age, many, by ha- 
bit, dependent for happiness on the notice of the 
great ; while all would be surrounded by rela- 
tions and friends looking to their influence for 
lucrative employments, or promotion in the state. 
Beset by such temptations, and holding their of- 
fices independently of public opinion, a majority 
might be expected to sacrifice to ministerial fa- 
vour that popularity and virtue, to which they 
were originally indebted for their seats. In place 
of being a check on the precipitancy of the re- 
presentatives, such a senate would become the 
bulwark of abuses, the shameless protector of 
corruption, and the obstinate opponent of every 
improvement in the government. 

Nor is this the worst evil that might be appre- 
hended. Were such a senate incorruptible, it 
would become dangerous to every other power 



POLITICAL POWER, 239 

of the state. No hereditary nobility has ever 
shown greater attachment to exclusive privi- 
leges, greater perseverance in extending the li- 
mits of their authority, more address in promo- 
ting their peculiar interests, than those orders, 
whose honours and immunities, being only for 
life, might seem less natural objects of inordi- 
nate ambition. The zeal with which the clergy 
of many countries have seized every opportunity 
of promoting the power and influence of the 
church, and the spirit manifested by the parlia- 
ments of France, by the senate of Venice, the 
burgo-masters of Holland, and even the town- 
councils, universities, and other corporations of 
England, may prove the strong attachment of 
members of such bodies to whatever discriminates 
them from the rest of the people, and how apt they 
are to prefer the interests of their order to those 
of the state. A similar spirit would pervade se- 
nators appointed for life ; and with their oppor- 
tunities of making silent encroachments, and their 
means pot only of embarrassing government, but 
of putting a stop to all public measures, when 
their usurpations were withstood, they could 
scarcely fail to acquire many unjust privileges 
for their order, and to engross a dangerous share 
of political power. Thus, those who resisted, 
and those who yielded to, corruption, would 
equally endanger the liberty of their country ; 
the former would sacrifice it to the aggrandize- 



gjO OF THE DISTRIBUTION OF 

ment of their order ; the latter would sell it to 
the ambition of the court. 

The English house of lords, the worst consti- 
tuted perhaps of all senates, is composed of bish- 
ops who hold their offices for life, and of heredi- 
tary noblemen, to whose number the king can 
make additions at pleasure. Many of the bishops, 
raised through the successive gradations of the 
church by patronage not always commensurate 
to their piety or learning, holding their benefi- 
ces by the appointment of the crown, and look- 
ing to the same quarter for farther promotion, 
are ready, according to the wishes of the court, 
to adopt or reject whatever measures may be 
submitted to their consideration. The peers by 
hereditary right, as may be expected where birth, 
not merit, opens the road to office, are not gene- 
rally eminent for knowledge, application, or ta- 
lents ; and while many of them, having impair- 
ed or squandered their patrimonial estates, are 
dependent for their daily subsistence on the 
bounty of the crown, almost all have families to 
provide for, educated in the profuse enjoyment 
of every luxury, and in a contempt of industrious 
employments. Lest, after all, the peers should 
at any time assert their independence, a power 
is vested in the sovereign of adding to their num- 
bers at pleasure, and this power has sometimes 
been exercised to its full extent. By means of 
the prerogative of creation, however, a certain 
degree of ability is, from time to time, infused 

1 



POLITICAL POWER. 241 

into the peerage, and a senate, even constituted 
in this manner, is not without its uses, in pro- 
moting discussion, enforcing regularity of pro- 
cedure, and correcting errors in language or de- 
tail which have escaped the observation of the 
lower house. 

In the reign of George the First, an attempt, 
ascribed by some to factious motives, and by 
.others to the purest patriotism, was made by 
administration to secure the independence of 
the house of lords, by abolishing the prerogative 
of creation, except in case of the failure of peer- 
ages then existing. * It does not seem probable, 
however, that this alteration of the constitution 
would have been attended with the desired ef- 
fect. So many of the peers would, at all times, 
have been dependent on the crown, for that in- 
come, which, though necessary to their rank, 
they had been deprived of by their own extra- 
vagance or that of their ancestors, that the exe- 
cutive government, assured of the bishops, and 
of peers newly created in place of those become 
extinct, might, almost as certainly as at present, 
have commanded a majority. 

Even the entail, in the same line with each title, 
of an estate sufficient to support its splendour, 
could not free a hereditary peerage from that ser- 

* Six new peers were to be created immediately after pass- 
ing the bill ; but that circumstance is not material in estima- 
ting the more distant consequences of the measure. 

VOL. I. Q 



242 OP THE DISTRIBUTION OP 

vility which seems inseparable from its existence. 
Though the family estate were adequate to the 
rank of its possessor, it could never enable him, 
without rigid economy inconsistent with his ha- 
bits, and degrading, as he would think, to his ele- 
vated station, to make even a moderate provision 
for his younger children. To increase the estates 
of the nobility would only be to increase that 
magnificence and profusion, which the example 
of their equals would render necessary, in the 
opinion of the world, to the maintenance of their 
dignity. It requires considerable prudence and 
self-command, in any situation of life, to ad- 
here to such a degree of economy as may pro- 
vide for a family by the annual savings from a 
settled revenue ; and such virtues could scarcely 
be expected from those who, educated in the 
certainty of possessing an ample fortune, and 
exposed to the contagious example of profusion 
in their acquaintances, might easily be persua- 
ded that their high rank required a proportion- 
able splendour, to prevent the dignity of noble 
birth from being eclipsed by the impertinent 
magnificence of upstart wealth. 

But were the independence of a hereditary 
nobility attainable, it is very doubtful whether 
it would be productive of public benefit. Those 
who are born to office, who succeed to pri- 
vileges without regard to their own talents or 
acquirements, must, in general, be deficient in 
every quality which could enable them to exer- 



POLITICAL fOWER. 242 

cise their functions with advantage to the coun- 
try. In spite of splendid exceptions which oc- 
casionally occur, hereditary councils must be 
conspicuous for ignorance and imbecility* Yet, 
notwithstanding their want of talents, an inde- 
pendent nobility could scarcely fail to promote 
the separate interests of their order, and to ac- 
quire, by gradual encroachments, a decided pre- 
ponderance in the government. The first object 
of a house of lords, relieved from that influence 
which at present overrules its determinations, 
would be to increase the privileges of the nobi- 
lity ; the second^ to establish a control over the 
appointment of ministers and the measures of 
administration. In these endeavours, pursued 
with systemaic perseverance, it would proba- 
bly be successful ; and, in the struggle, the 
most reasonable desires of the nation might be 
resisted, and the whole powers of government 
suspended. There could indeed be no consti- 
tutional mode of overcoming an opposition, 
which, however unprincipled, was merely the 
exercise of an acknowledged right. There ne- 
ver could be wanting peers of sufficient talents 
and ambition to engage the house in factious 
struggles. A nobility armed with the power of 
rejecting every new law, however urgent for the 
public service, could at all times obstruct the 
united wishes of the sovereign and the people, 
and on great emergencies, by threatening to 
throw the government into confusion, might 



244 OF THE DISTRIBUTION OP 

force a submission to the most arrogant de- 
mands. It seems, therefore, that between a cor- 
rupt, and an independent, house of lords, sup- 
posing that the latter could possibly exist, the 
commons in 1719 chose the least of two evils. 

Whether an institution, presenting only such 
an alternative, should be preserved, where for 
ages it has formed part of the constitution of the 
state, must depend on local and temporary cir- 
cumstances altogether foreign to the object of 
the present enquiries : but there can be no doubt, 
when a house of peers has neither been inter- 
woven with the other departments of govern- 
ment, nor rendered venerable by its antiquity in 
the estimation of the people, that its functions 
would be exercised, with less danger to liberty, 
and greater benefit to the commonwealth, by a 
senate chosen from the most deserving members 
of the representative assembly, and guarded, by 
the mode of election, from undue dependance 
on popular prejudice or the fleeting passions of 
the day* 



SECTION V. 

Of the Executive Power, 

Of the several parts of that complication of 
powers known under the name of a government, 
the executive branch presents the greatest diffi- 



POLITICAL POWER. 245 

culties to him, who, surveying the constitutions 
of various states, endeavours to ascertain the ge- 
neral principles of political arrangement most 
conducive to the public good. The duties of 
the executive branch, in enforcing the decrees 
pf the legislature, in maintaining the peace and 
order of society, and in conducting the foreign 
policy of the state, require powers simple, ener- 
getic, and, in the moment of action, uncontrouled. 
But powers of this nature, to whomsoever they 
may be delegated, are always liable to abuse, In 
place of being subordinate to the legislature, 
they are in danger of becoming paramount : on 
pretence of securing internal tranquillity, they 
may undermine, or forcibly overthrow, the con- 
stitution and the laws. 

The total separation of the legislative from the 
executive branch of government has been view- 
ed, in modern times, as an indispensable, though 
not a complete, security against such usurpations. 

" Lorsque," says Montesquieu,* " dans la 
" meme personne ou dans le meme corps de 
«* magistrature, la puissance legislative est re- 
" unie a ia puissance executrice, il n'y a point 
" de liberte ; parce qu* on peut craindre que le 
" meme Monarque ou le meme senat ne fasse 
** des loix tyranniques, pour les executer tyran- 
* niquement." 

This opinion has been adopted, and in some 
degree illustrated, by Sir William Blackstone.t 

* De PEsprit des Loix, Liv. XI. Chap. VI. 

f Commentaries on the Laws of England, Book I, Chap. II. 



J246 OF THE DISTRIBUTION OP 

" In all tyrannical governments, the supreme 
« magistracy, or the right both of making and of 
" enforcing the laws, is vested in one and the 
" same man, or in one and the same body of men ; 
" and wherever these two powers are united to- 
" gether, there can be no public liberty. The 
" magistrate may enact tyrannical laws, and exe- 
" cute them in a tyrannical manner, since he is 
" possessed, in quality of dispenser of justice, 
" with all the power which he as legislator thinks 
" proper to give himself. But when the legisla- 
" tive and executive authority are in distinct 
" hands, the former will take care not to entrust 
" the latter with so large a power as may tend 
" to the subversion of its own independence, 
" and therewith of the liberty of the subject." 

These reasonings, notwithstanding the high 
authority of those who have employed them, do 
not seem applicable to every form of govern* 
ment, nor perhaps very conclusive with regard 
to any. Whatever dangers may be apprehend- 
ed from lodging both the legislative and execu- 
tive powers in the hands ot the same monarch 
- or the same aristocracy (and it will readily be 
allowed that in such governments every kind of 
check on abuses ought to be adopted for the 
protection of the people) there seems little rea- 
son to suppose that representatives whose autho- 
rity is temporary, and who are soon to return to 
private stations, would create any powers, which, 
though lodged for a time in their own persons, or 



POLITICAL POWER. 24? 

in officers appointed by themselves, might after- 
wards pass into other hands, and become the in- 
strument of their own punishment. If, notwith- 
standing this check on their misconduct inherent 
in the nature of their appointment, the represen- 
tatives should be induced to confer an authority 
subversive of liberty, either on their successors, 
or on magistrates nominated by them, it is pro- 
bable that the same motives, originating either 
in extreme folly or gross corruption, would lead 
them to vest similar powers in the executive go- 
vernment, in whatever manner it might be con- 
stituted. 

But the danger of tyrannical laws being en- 
acted, that they may be executed in a tyrannical 
manner, seems rather to refer to the junction of 
the legislative and judicial powers, than to that 
of the former with the executive. If the judici- 
al power be incorrupt, there will be redress for 
every unauthorised oppression committed by the 
government ; but, without introducing the most 
destructive anarchy, there can be no authority 
in the state superior to that of the legislature ; 
and consequently no means, by subdivision of 
powers, of staying the execution of the most ty- 
rannical statute. It rests with the courts of law 
to determine whether the services imposed on an 
individual by the government are authorised by 
the law ; and while these courts do their duty, 
no oppression beyond the precise terms of the 
enactment can be exercised in consequence of 
the junction of the legislative and executive 



248 OF THE DISTRIBUTION OP 

powers : nor is it easy to conceive how any farther 
security to liberty could arise from their com- 
plete disunion. That, after all possible precau- 
tions, tyrannical laws may be passed, is undoubt- 
ed ; and that such laws, by whomever executed, 
must be tyrannical in their operation, is equally 
certain ; but as the executive government ought 
to have no discretionary control over the laws, 
the separation of the two powers can, in such 
cases, afford no effectual protection to the peo- 
ple. The fault is in the legislative authority, and 
can be corrected only by a better choice of re- 
presentatives, or by a more judicious constitution 
of the supreme power of the state. 

There are, however, many disadvantages of a 
different nature, in permitting the legislative as- 
sembly to appoint the magistrates. It introduces 
faction of the worst and most degrading kind : 
Not that division into parties which arises from 
entertaining opposite views of the rights of man- 
kind, and of the powers necessary to govern- 
ment ; not that difference of sentiment respect- 
ing public measures, which, originating in soli- 
citude for the welfare of the state, is apt to de- 
generate into political bigotry ; but cabals found- 
ed at best on personal attachments, and much 
more frequently on personal interests. Repre- 
sentatives, chosen by an active canvass, would 
appear to be elected for no other purpose but to 
continue a similar canvass for superior employ- 
ment ; every office in the state, from the highest 
to the most insignificant, would be gained by 



POLITICAL POWER. 249 

venalitv or faction ; and those means would not 
be deemed degrading which led to emolument, 
to patronage, and to public honours. The legis- 
lative assembly, forgetful of its duties, and exhi- 
biting a scene of profligate intrigue, would soon 
lose the confidence of the nation, and, while all 
promotion was denied to talents, except when 
employed in contesting a share of the general 
pillage, the people, disgusted with what was call- 
ed their liberties, would fly to despotism as a re- 
fuge against such disgraceful and complicated 
evils. 

Even appointments made by the legislative 
assembly from the purest motives would, in 
many instances, be attended with little benefit 
to the public service. All the branches of ad- 
ministration, being more or less intimately con- 
nected with each other, require to be direct- 
ed by those who are possessed of mutual confi- 
dence, and actuated by similar views of policy. 
Without cordial co-operation, the public func- 
tionaries, however desirous to do their duty, 
must meet with frequent delays and the most 
teasing contradictions. Each, anxious to exe- 
cute his own schemes, will be apt to neglect or 
interfere with the plans of his colleagues ; dis- 
putes and jealousies will arise ; and, amidst per- 
petual jarrings, and mutual recriminations, the 
public service will be totally neglected. It is, 
therefore, of the utmost consequence, that the 
chief officers of state should entertain the same 



&50 OF THE DISTRIBUTION OP 

general opinions, both with regard to internal 
and foreign policy, and, above all, that they 
should be inclined to act with each other confi- 
dentially, as with men of whose good intentions 
they are fully convinced, and whose opinions, 
characters, and talents, they mutually respect. 
It were vain to look for such cordiality, or even 
for any unity of views, among ministers appoint- 
ed, from time to time, by the legislative assem- 
bly. A candidate of one party might, from his 
personal interest, be successful to-day, one of an 
opposite party to-morrow, and the council table 
might be filled by strangers, or even personal 
enemies, disposed to thwart each other's schemes, 
and to console themselves for public misfortunes 
in the disgrace which the want of success might 
bring upon their colleagues.* 

* Mr Burke has given a description, no less amusing than 
just, of the administration formed by Lord Chatham. 

" He made an administration so checkered and speckled ; 
" he put together a piece of joinery so crossly indented and 
" whimsically dove-tailed ; a cabinet so variously inlaid ; such 
41 a piece of diversified mosaick ; such tesselated pavement 
sl without cement ; here a bit of black stone, and there a bit 
" of white ; patriots and courtiers ; king's friends and repub- 
<« licans; whigs and tories ; treacherous friends and open ene- 
" mies ; that it was indeed a very curious show, but utterly 
" unsafe to touch, and insecure to stand on. I venture to 
*' say, it did so happen, that persons had a single office divi- 
" ded between them, who had never spoke to each other in, 
<* their lives, until they found themselves, they knew not 
(t how, pigging together, heads and points, in the same truckle* 
& bed.—- Speech, April 19, 1774* 



POLITICAL ?OWER. 251 

Nor is it probable that the same assembly by 
which ministers were appointed would watch ef- 
fectually over their conduct. The same influ- 
ence, which had procured their appointment, 
when strengthened by the opportunities derived 
from their offices of rewarding their adherents, 
must, on all ordinary occasions, maintain them 
in power, and render abortive every attempt to 
censure their conduct. In cases, indeed, of very 
flagrant misconduct, or of very gross incapaci- 
ty, public indignation might force the legisla- 
ture to call ministers to account, to dismiss the 
unworthy, and to punish the guilty : but such 
interferences would be extremely rare, and al- 
ways too late to prevent evils which it might be 
impossible to remedy. While no immediate ca- 
lamity impended, abuses might be multiplied, 
the internal administration neglected, and the 
foreign policy unskilfully conducted, if those, 
whose duty it was to keep a vigilant watch over 
the conduct of ministers, were their friends, their 
constituents, and very frequently their depend* 
#nts. 

If the legislative body be incompetent to the 
selection of proper persons to preside over the 
several departments of the state, much more 
must the people be unfit to exercise such a power. 
The qualifications requisite for each branch of 
administration could scarcely be made level to 
the understandings of the multitude ; and to de- 
termine in what jdegree such qualifications were 



252 OF THE DISTRIBUTION OF 

possessed by the several candidates would-re- 
quire a minute acquaintance with their habits 
and acquirements, unattainable by any consider- 
able portion of electors scattered over the em- 
pire, and paying only occasional attention to the 
conduct of public men. Even if there were the 
utmost purity of election, the most anxious de- 
sire to prefer the most deserving of the candi- 
dates, all that could be hoped for would be, that 
the offices of the state might be filled up with 
worthy and intelligent men, but often unfit for 
their situations ; while, from their being stran- 
gers, or perhaps enemies, to each other, all con- 
fidence would be banished from their delibera- 
tions, and all consistency from their plans. 

If, then, the chief officers of state ought to be 
appointed neither by the legislative body nor the 
people, and if the very same objections, as is 
manifestly the case, apply to the appointment, 
in either of these modes, of a council of regen- 
cy, the power of nominating ministers must be 
confided to some individual elected for a term 
of years or for life ; or, if this also be improper, 
it must be committed to a particular family, the 
members of which may succeed, by hereditary 
right, to the dignified and important office of mo- 
narch. 

To every kind of election of the chief magis- 
trate there seems this objection ; that, when any 
doubt may exist of the fairness or validity of the 
election, there is no court to which so important 



POLITICAL POWER. 253 

a function, as the deciding between the claims 
of the rival candidates, can safely be entrusted.* 
To vest this power in the legislative assembly, 
or in the senate, would be nearly equivalent with 
giving them the right of nomination ; as preten- 
ces could never be wanting for referring the 
merits of the election to their determination. On 
the other hand, to submit the case to ordinary 
judges or juries would be to substitute the wishes 
of a small portion of the inhabitants, for the ge- 
neral voice of the people, and to occasion an al- 
most unavoidable suspicion, seldom, if ever, un- 
founded, of the decision being dictated by par- 
ty spirit, or venality. The authority of the le- 
gislature might procure an acquiescence in its 
own decision, though by introducing very ge- 
neral corruption into every branch of govern- 
ment ; but when the nation was heated by an 
obstinate contest for the highest office of the 
state, and every party was jealous of the designs, 
and indignant at the real or imputed manoeuvres 
of its opponents, quiet submission to the award of 
a civil court could scarcely be expected. Disor- 
der, riot, and civil war, might be the consequen- 
ces of real or fancied irregularities j and even 
when contests were not pushed to such extremi- 
ties, the government might be viewed by a great 
part of the citizens as a fraudulent usurpation, 

* There is no provision for the decision of a contested elec- 
tion of the president, in the constitution of the United States 
©f America. 



254 OF THE DISTRIBUTION OF 

to which no sentiments, but those of hatred and 
enmity, were due. 

The dissatisfaction of a part of the nation, and 
the consequent weakness oPgovernment ; the ap- 
prehension of impending danger from abroad or 
of internal convulsions ; the splendid talents of 
the chief magistrate, or of those who set them- 
selves in opposition to his government ; all these 
and man j other circumstances would afford in- 
citements and opportunities for ambition to at- 
tempt the establishment of arbitrary power. A 
kingdom is too tempting a prize not to allure ad- 
venturers, notwithstanding many instances of 
failure and of the severest punishment : The pub- 
lic peace would therefore at all times be insecure : 
And when the highest office in the state was fill- 
ed, as must occasionally happen, by a man of 
weak understanding or disputed title ; still more 
when it was occupied by acknowledged me- 
rit, distinguished abilities, and popular address, 
public liberty would be in the most imminent 
danger. Many attempts to establish arbitrary 
power might be abortive ; but in more favour- 
able circumstances, some one proving success- 
ful, the rights of the nation might be subverted 
for ever. Aware that his authority, founded on 
temporary delusion, is exposed to incessant at- 
tacks from prejudice and habit, as well as from 
reason and manly independence of mind, a usurp- 
er can scarcely be satisfied with moderate power, 
but must seek his own security in general cor- 



POLITICAL POWER. 255 

ruption, in terror, in the discouragement of eve- 
ry generous feeling, in restrictions on the com- 
munication of sentiment, in venal senates, and 
in military slaves. To be secured against tyran- 
ny, it may therefore be prudent to abate some- 
what of political right : as the best defence from 
usurpation, it may be wise to establish a heredi- 
tary monarch with a moderate and strictly defi- 
ned authority. 

The evils now enumerated seem inseparable 
from every mode of electing the' supreme magis- 
trate, though they may not apply to them all in 
an equal degree. The difficulties in procuring 
a proper nomination either by the legislature or 
the people, the want of a jurisdiction to which 
disputed elections may safely be referred, the 
danger of civil war, of usurpation, and of those 
evils which spring from a disputed title, are to 
be apprehended, whether the appointment be for 
a term of years or for life : But in addition to 
these evils, if we prefer the former, the govern- 
ment will be fluctuating and inefficient ; if the 
latter, rapacious and corrupt. 

Both in the internal and external policy of a 
state, it is much to be desired that measures, 
well considered before being adopted, should be 
steadily adhered to by the government. The 
course of a few years is scarcely sufficient to ac- 
quire such an accurate knowledge of detail as 
may lay a sure foundation for extensive and well- 
ordered plans of national improvement ; and that 



256* OF THE DISTRIBUTION OF 

the best digested schemes may be beneficial to a 
country, they must be preceded by a gradual 
preparation of the public mind, introduced with 
many modifications according to pre-existing 
opinions, habits, and institutions, and followed 
out with perseverance, vigilance, and caution. In 
like manner, the relations with foreign powers, 
that they may be conducive to dignity or safe- 
ty, must not only be formed on enlightened and 
liberal principles, but adhered to with such steadi- 
ness and good faith as will command the con- 
fidence and secure the cheerful co-operation 
of allies. In both branches of administration, 
frequent and violent changes of the execu- 
tive government must, therefore, be prejudiciaL 
Every chief magistrate will be apt to view the 
schemes of his predecessor with coldness, if not 
with dislike. He will come into office with plans 
of national improvement digested and arranged 
in his own mind, and with ideas of foreign rela- 
tions which may be entirely opposite to those 
which have been pursued. Knowing the short 
duration of his power, and laudably anxious to 
secure his claims to the gratitude of posterity 
on the solid grounds of public services, he will 
be impatient to bring forward those improve- 
ments on which his fame must depend, and to 
advance them to that maturity which may bid 
defiance to the carelessness or hostility of his suc- 
cessor. Hence, he will be hasty and rash ; he 
will allow the crude plans of his predecessor to 



POLITICAL POWER. %57 

sink into oblivion, only to substitute in their place 
schemes as ephemeral ; he will set at nought po- 
pular prejudices, and confirmed opinions ; he will 
even disregard established institutions and trea- 
ties ; and the administration will exhibit a fluc- 
tuation of counsels, an inconsistency of regula- 
tions, a levity of enterprise, and an inefficiency 
of execution, which will equally forfeit the re- 
spect of the citizens and the confidence of fo- 
reign powers. To obviate these evils, it seem9 
requisite that the chief executive officer should 
hold his situation by a tenure less precarious ; 
and that, having a more permanent interest in 
the measures of government, he should possess 
such an authority over ministers, as, without re- 
ducing them to dependence or servility* may re- 
press their eccentricities, and confine their mo* 
tions, in some measure, to a regular and deter- 
minate orbit* 

By making the chief magistracy an office for 
life, sufficient uniformity in the measures of go- 
vernment may certainly be obtained, but proba- 
bly at the risk of opening up more noxious sour- 
ces of mal-administration* The mind of man is 
dissatisfied with temporary power, even though 
its endurance be commensurate with his life. 
Conceiving a kind of prolongation of his own 
existence in his posterity, he cannot brook the 
idea of his children descending to an inferior 
station in society. To prevent this degradation, 
he, who is raised above his fellow-citizens, will 
VOL. i. it 



258 OF THE DISTRIBUTION OF 

employ all his influence and every engine of in- 
trigue ; to secure the succession to his son will 
be the grand object of his administration ; and, 
in his endeavours to render his office hereditary, 
the good of his country will be disregarded, dis- 
trust and faction will be generated, and not un- 
frequently disorders will be fostered which may 
lead to civil commotion. Should prudence or 
timidity prevent the supreme magistrate from 
openly attacking the constitution, there are ob- 
vious means by which he may secretly undermine 
it. By sacrificing the public service to the inte- 
rests of his family, and filling the offices of state 
with his creatures, he may establish an influence 
sufficient to give a decided bias in favour of the 
most deserving of his relations, till, at last, fre- 
quent repetition of elections under the same in- 
fluence may render the office in effect heredita- 
ry. Should this appear too hazardous a project, 
he will be apt to render his office subservient to 
his own aggrandizement, that his children, if not 
powerful, may at least be opulent. With this 
view, he may sell, more or less publicly, the ap- 
pointment to every place of trust ; he may bar- 
ter for money those badges of distinction intend- 
ed to be the rewards of merit ; he may partici- 
pate with his ministers in a general spoliation of 
the revenues of the state ; or he may accept a 
bribe for betraying the interests of his country, 
and become the degraded pensioner of a fo- 
reign potentate. 

6 



POLITICAL POWER. 259 

Such abuses are sufficiently exemplified in the 
history of the papal government. It might have 
been expected that clergymen, educated in ha- 
bits of moderation, sometimes of severe penance, 
would have despised selfish indulgences, and been 
proof against the temptations of avarice : it might 
have been thought that those, who had been se- 
parated, almost from their infancy, from their re- 
lations, who had no children publicly acknow- 
ledged, and who had been accustomed to resign 
every desire and feeling of their nature, for the 
benefit, if not of their country, yet of their reli- 
gious order ; that men, so circumstanced, could 
have felt few incitements to rapacity, few wishes 
for aggrandizement inconsistent with their public 
duties. Yet this government has never perhaps 
been equalled in corruption. The amassing of 
private wealth was the leading object of many of 
the popes ; the establishment of their natural 
children or other relations in wealth, in power, 
sometimes in independent principalities or king- 
doms, the ruling passion of others ; and to such 
objects, all public faith, every tie of honour or 
of conscience, and all regard to the dignity of 
the state or the happiness of the people, were al- 
most constantly sacrificed. If such were the pa- 
pal government, in which so many of the ordi- 
nary spurs to ambition were wanting, how venal 
and corrupt may a supreme magistracy for life 
be expected to become, when vested in a man 
habituated to the ardent pursuit of wealth and 



260 OF THE DISTRIBUTION OF 

power, impelled by the desire of aggrandizing 
his family, and goaded on by the solicitations of 
numerous friends and dependants to whom he 
has been attached through life ? 

To hereditary monarchy, the only constitu- 
tion of executive power that remains after re- 
jecting appointments for a term of years or for 
life, it must be acknowledged that there are also 
most important objections ; but although its evils 
may not be capable of effectual remedy, they 
may in some measure be alleviated by proper 
correctives. 

Wherever a hereditary title is established, 
there is a certainty of many of those* who, in the 
course of time, succeed to the office, being de- 
ficient in industry, in abilities, and in virtue. 
Their understandings must often be weak, and 
their morals licentious or corrupt. Their edu- 
cation amidst every indulgence, their knowledge 
that their situation in life is independent of their 
own exertions, and the habits of vanity, impati- 
ence, selfishness, and debauchery, which are fos- 
tered by the flattery of their dependants, while 
they stifle many of their virtues, foster the natural 
defects of their characters, and render them in 
general so inferior to the rest of the nation, that 
perhaps no maxim rests on a more extensive in- 
duction than that of the poet, 

*' Qui naquit dans le pourpre, en est rarement digne." 

In so important an office as that of chief ma- 



POLITICAL POWEK. 261 

gistrate, an office of the highest influence and 
power, on the due discharge of which so much of 
the national prosperity depends, what mischiefs 
may not be apprehended from ignorance, levity, 
obstinacy, or unprincipled ambition ? * 

That the office of a hereditary monarch is, 
at all times, and in spite of all precautions, lia- 
ble to pass into the hands of the weakest or 
most wicked of mankind, is a truth which should 
never for a moment be absent from our minds. 
But if the constitution provide that no order of 
the King can be valid till countersigned by an 
ostensible minister ; if it establish a real and se- 
vere, not a merely nominal, responsibility for 
every act of the administration, and of each of 
its members ; above all, if it empower the re- 
presentatives of the people to dismiss every pub- 
lic officer except the sovereign, and if the repre- 
sentatives be independent of the executive go- 
vernment, without which all checks must be im- 
potent ^ if such precautions be taken, no very 
great calamity perhaps could be brought on the 
nation by the weakest or most unprincipled of 
kings. Exercising no function, except the ap- 
pointment of ministers, otherwise than by the 
advice of those who, for misconduct, are liable 
to punishment > compelled, by this responsibili- 

* The argument against hereditary monarchy is well sta- 
ted in a tract, entitled The Portraiture oftlie Kings of England, 
ascribed to Henry Parker, secretary to Cromwell. 

Lord Somen* Col. vol. VL {Ed. 1811.) 



262 OF THE DISTRIBUTION OF 

of his ministers, to execute and obey every law 
enacted by the legislature ; exposed to the dis- 
missal of his minions from office even on suspi- 
cion of their entertaining designs hostile to the 
public freedom ; and controuled in several im- 
portant branches of administration by the privi- 
leges of the senate ; he could neither persevere 
in any very unpopular external policy, nor ne- 
glect very grossly any department of internal 
administration, nor attack with success the li- 
berties of his country. General suspicion would 
instantly be followed by the dismissal of the mi- 
nisters, by whose behaviour it had been excited ? 
and actual delinquencies would be repressed by 
merited punishment and disgrace. 

Nor do those apprehensions seem to be well 
founded which have been entertained by some, 
that the legislature, by means of the power of 
dismissal, may assume that of the appointment, 
of ministers. To force the king to abandon the 
counsels of those in whom he had placed his 
confidence would not be the way to acquire his 
favour, or to succeed to the ministers whom he 
had been obliged to dismiss. His choice extend- 
ing to every citizen of the state, it is very un- 
likely that he would prefer men who had so re- 
cently opposed his wishes and overturned his 
schemes. On the contrary, he would be desi- 
rous of making them feel that, by so doing, they 
had raised up obstacles to their own advance- 
ment, arid he never could be at a loss to find 



POLITICAL POWER, 263 

others of fair character and unexceptionable 
principles, who, having taken a less active part 
in the late opposition, were less obnoxious to 
his resentment. Were the legislature again to 
dismiss these ministers, with the avowed or ap- 
parent intention of forcing the sovereign to ap- 
point particular individuals to whom they were 
attached, the display of such factious motives 
would deprive them of that popularity without 
which their powers must be feeble and transient ; 
unless indeed the conduct of the sovereign had 
excited so general a distrust of his intentions as 
rendered every suspicion reasonable, and every 
precaution indispensable. It is probable, there- 
fore, that the legislature, in place of endeavour- 
ing to force particular ministers into office, would 
acquiesce in the nomination of the crown, ex- 
cept when the minister was notoriously unfit for 
office, or had avowed principles hostile to the 
constitutional liberties of the country. In either 
of these cases, it would become their duty to in- 
terfere with promptitude and decisive effect. 

To wait till a government of known imbecili- 
ty had embroiled the public affairs, or till one 
of arbitrary principles had committed an act, 
from its illegality, affording grounds of prosecu- 
tion, were, in many instances, to forfeit the con- 
fidence of foreign powers, to endanger the pub- 
lic prosperity, to subvert the spirit, even by a 
strict adherence to the forms, of the government. 
That an invincible barrier be opposed to abuses 



264 OF THE DISTRIBUTION OF 

in their infancy, it is requisite that the power of 
dismissal should be executed with vigilance and 
resolution. On this account, it should probably be 
vested both in the legislative assembly and in the 
senate, either of which bodies ought to have the 
privilege, by a simple vote, of removing any mi- 
nister from his office, or altogether from the 
councils of the sovereign. There is little risk of 
this power being too frequently exercised ; nor 
indeed would such an abuse be attended with 
any very fatal consequences to the state. A vir- 
tuous and enlightened minister might sometimes 
be displaced by unfounded clamour or factious 
misrepresentation \ but it would usually be no 
difficult matter to find a successor qualified to 
succeed him ; whereas, were an able but profli- 
gate favourite to be allowed, even for a short 
time, to retain his power, the liberties of the na- 
tion might be irrecoverably lost. Even the vic- 
tim of a regulation so beneficial, as the unquali- 
fied power of dismissing dangerous, suspicious, 
or unpopular ministers, could scarcely repine at 
a mild ostracism, which wronged him no other- 
wise than by a temporary seclusion from office. 
After all, there must remain considerable dan- 
ger of the sovereign acquiring so uncontrouled 
an influence over the deliberations of the legis- 
lature, as, in spite of restrictions, to render the 
government corrupt and despotical. Princes, 
from their education, from the flattery which 
surrounds them, from the marks of respect, al- 



POLITICAL POWER. Q65 

most of devotion, with which they are every 
where received, and also, perhaps, from the sla- 
vish phraseology employed in public documents, 
ate too apt to consider absolute power as their 
right, on which the liberties of the people have 
been unjust infringements. Even those, whom 
better information may have undeceived, find 
many ways of reconciling to their conscience that 
desire of power, which is so congenial to their 
wishes. They exaggerate the occasional excesses 
and disorder of popular rule, and confound the 
irregular interferences of the people with their 
established privileges : disguising ambition, even 
to their own minds, under the mask of patriotism, 
they persuade themselves that their counsels, if 
unopposed by ignorance and faction, would en- 
sure the public welfare ; or perhaps they flat- 
ter themselves, that the grandeur of their views, 
and the glory of their atchievements, will more 
than compensate for the overthrow of liberty. 
Accordingly, though there are exceptions, splen- 
did in proportion to their rareness, history war- 
rants the assertion, that princes are unceasingly 
employed in undermining the liberties of their 
country, and that against a resistance, from its 
own nature occasional, uncombined, and often 
injudicious, their systematic attacks are usually 
successful. Hence, the decay of public freedom 
and of public morals ; and hence the introduc- 
tion of abuses, which, unperceived in their infan- 
cy, grow up to strength that defies reformation, 



266 OF THE DISTRIBUTION OF 

and, under the mask of friendship and of peace, 
strangle every right and privilege of the people. 

To guard effectually against the encroachments 
of the executive government, when the advances 
are made under cover of corruption, is perhaps 
the most difficult problem of political science. 
Yet there are not wanting means by which, if 
steadily employed, such encroachments may be 
in a considerable degree repressed ; means which 
are suggested, by considering the several modes 
in which the representatives of the people are 
usually reduced to dependence on the crown. 

Some representatives from indigence, and 
more from avarice or extravagance, will, at all 
times, be disposed to barter their independence 
for such a sum of money as may relieve them 
from present distress, support them in splendour, 
or enable them to lay the foundation of an afflu- 
ent fortune ; and the management of a large re- 
venue puts it in the power of administration to 
withdraw considerable sums from the exchequer, 
apparently for the public service, but, in reality, 
for the purposes of corruption. This abuse can- 
not, perhaps, be wholly remedied ; but, by keep- 
ing each head of the public charge separate from 
every other, by voting the supply for each de- 
partment on estimate, and by preventing any 
money from being issued from the exchequer, 
except on requisition of the minister of that de- 
partment to which it is issued, it may in a great 
degree be checked. 



POLITICAL POWER. %67 

To guard against another species of depend- 
ence in the representatives, a seat in the legisla- 
ture, or senate, ought to be incompatible with 
the possession of office ; with an exception, how- 
ever, in favour of the ministers of state, who, 
for reasons of public convenience, ought ex officio 
to be members, partly of the upper, and partly 
of the lower house. There would still remain 
sufficient inducements for men of talents to be 
ambitious of representing their fellow-citizens, 
although that honourable situation were a bar to 
the possession of lucrative offices inconsistent 
with the guardianship of the public purse, and 
highly dangerous to the upright discharge pf 
their other duties. 

The chief source of influence, however, and 
that which it is most difficult to correct, is nei- 
ther in pecuniary corruption, nor in the power 
of promoting the representatives themselves ; but 
in the various ways in which administration 
can provide for the relations and dependants of 
its adherents. After every useless place had been 
abolished, and the emoluments of the rest re- 
duced to a fair and liberal compensation for la- 
bour and talents, still the number of remain- 
ing offices, if left at the disposal of ministers, 
might raise up an influence dangerous to the 
liberties of the country. But there seems no ne- 
cessity for leaving all those offices at the disposal 
of the crown. Another, and probably a much 



268 OF THE DISTRIBUTION OF 

better, mode of appointing and promoting the 
officers of the navy and army, may be found, 
partly in length of service, and partly in the 
judgment of the officers of superior rank ; * and 
there seems no reason why a similar mode of 
promotion should not be adopted in the church, 
if a church establishment should be approved of, 
and also in many other departments of the state. 
After all that such regulations can effect, 
enough, and more than enough, of influence will 
remain to render chimerical those fears, which 
have sometimes been expressed, of the motions 
of the political machine being impeded by fac- 
tion, and of the legislature drawing to itself all 
the powers of government. A great majority of 
the people, and also of their representatives, are 
apt to fall in with the opinions, and to support 
the authority, of those in power. Independently 
of corruption, ministers have many auxiliaries, in 
respect for their offices, in their superior infor- 
mation, and in that general indolence, that in- 
attention to public affairs, and those active pur- 
suits of private emolument, which are of them- 
selves preventives of any very persevering op- 
position. To overcome all these habits, and en- 
gage a majority in energetic measures against the 
government, would require no common convic- 
tion of the imbecility or rashness of the adminis- 
tration 5 particularly, as, in proportion to the 

* See Book II. Chap. III. § II. 



POLITICAL POWER. 26<j) 

diminution of ministerial patronage, that species 
of faction, which, though originating in ambition 
or chagrin, disguises itself under the mask of 
patriotism, would also be diminished. 

Nor does there appear any danger of the le- 
gislature interfering with the rightful preroga- 
tives of the crown, when these prerogatives are 
no longer fit instruments of private avarice or 
ambition. Such attempts could scarcely be ren- 
dered popular in the nation , and would meet 
with the most formidable resistance in the good 
sense and moderation of the senate. But if it 
should still be apprehended, that, in a moment 
of irritation, or in consequence of a league be- 
tween the representatives and the senate, the 
government might be overturned, and the pro- 
per authority of the crown annihilated, a power 
might be granted to the king, similar to that 
vested in the president of the United States of 
America, of remitting laws for reconsideration, 
after which the concurrence of two-thirds of the 
members of each house should be required for 
their enactment. To confide an absolute nega- 
tive to the sovereign must either be nugatory or 
prejudicial : nugatory, if his dependence on the 
legislature be such that he cannot exercise his 
negative without entering into an unequal con- 
test, which, though it may occasion confusion in 
the government, must end in his own discomfit 
ture ; prejudicial, if it enable him to resist the 



2/0 OF THE DISTRIBUTION^ &C. 

deliberate will of the nation, to persevere in mea- 
sures inconsistent with the public welfare, or to 
maintain abuses hostile to the free spirit of the 
constitution. 



BOOK II. 



OF THE DUTIES OF GOVERNMENT. 



INTRODUCTION. 



The purposes of political society being to pro- 
tect the citizens from injury, to increase by com- 
bination the effects of individual exertions, and 
to improve the moral and intellectual faculties 
of man, the duties of government naturally ar- 
range themselves under these three heads ; but, 
in each, various subdivisions will be convenient, 
on account of diversity either in the objects to 
be accomplished, or in the means by which they 
must be attained. 

The injuries, against which government is in- 
tended to provide, arise, either from the injustice 
of the citizens, or from that of foreign states ; 
and injustice among the citizens may be repress- 
ed, either by an interference of the public calcu- 
lated to protect natural rights from violation, or 
by the infliction of punishment on those by whom 
they have been violated. Under this branch of 



272 OF THE DUTIES OF GOVERNMENT. 

the duties of government, we have therefore to 
enquire, in the first place, into the Administration 
of Civil Law ; in the second place, into the Ad- 
ministration of Criminal Law, and in the third 
place, into the means of National Defence. 

The occasions on which government may wish 
to combine the exertions of individuals for the 
general good, and the means that maybe adopt- 
ed for this end, are various and complicated. To 
examine them in detail would be inconsistent 
with the nature of these Disquisitions ; but, with 
a few exceptions, the duties of government, com- 
prehended under this head, may be reduced to 
two great classes ; first, the direction of the wealth 
and industry of the nation to their most beneficial 
employments ; and, secondly, the distribution of 
wealth among the citizens. One branch, however, 
of this last enquiry will, from its importance^ 
require a more particular investigation, and there- 
fore we shall consider, in the third place, the pub- 
lie provisions for the maintenance of the poor. 

When government has secured the citizens 
against foreign and domestic injuries, and di- 
rected the general force towards those objects 
which, while they are important to the public 
welfare, are scarcely attainable by private exer- 
tions, it is probable that the progress of moral 
and intellectual improvement may be safely left 
to the unassisted efforts of individuals. But, as 
in most countries it has been deemed requisite 
to encourage, or to superintend, these exertions 



OF THE DUTIES OF GOVERNMENT. 273 

of the citizens, it may be proper to examine, 
first, the Institutions for the Education of Youth, 
and, secondly, the Establishments for the dissemi- 
nation of Religious Opinions. 

The present Book will consequently be divi- 
ded into eight chapters. 



VOL. I. 



CHAPTER L 

Of the Administration of Civil Law, 

SECTION I, 

Of regular Systems of Law, 

Law, as distinguished from moral duty, relates 
to all actions, with regard to which the interfe* 
rence of spectators, whether in enforcing right, 
or preventing wrong, is just and proper. This 
interference, as has already been explained, * is 
confined to cases, in which direct injury is ap-, 
prehended or has actually been committed. So 
long as the rights of others are respected, each 
man may act in whatever way he pleases - 9 he 
may conduct himself in the most foolish, or even 
in the most wicked manner ; he may ruin his 
health, dissipate his property, and show himself 
callous to all the feelings of humanity ; not in- 
deed without exciting general dislike, contempt, 
or abhorrence, but without rendering his con-* 
duct amenable to any kind of civil or criminal 
jurisdiction. 

* Book I. Chap I, Sec. I. and IV. 



OF CIVIL LAW. 275 

When, however, injury is threatened, or com- 
mitted, spectators have a right to interfere be- 
tween the parties ; and, if the injustice; cannot 
be prevented, either to replace them as nearly 
as possible in their previous situation, or to in- 
flict such a degree of pain or loss on the offender 
as may deter him and others from similar aggres- 
sions. The interference in the first mode is the 
origin of civil law, that in the latter of criminal 
jurisdiction. The distinction between these two 
branches of law is well exemplified in the case of 
libel. The offender may either be sued before a 
civil court for damages, as a compensation to the 
person whose character has been defamed ; or 
he may be prosecuted criminally, and punished, 
according to the degree of his guilt, by fine, im* 
prisonment, or pillory. 

When government has been established, the 
dispensing of justice among the citizens is no 
longer entrusted to the casual interference of 
spectators, but becomes the province either" of 
the people met in assembly, or of the richer 
and more powerful citizens, or of the prince. 
When the number of private disputes has increa- 
sed so much as to interfere materially with the 
other occupations of the people, the nobility, or 
the sovereign, particular magistrates are appoint- 
ed to exercise this important function. The se- 
paration of the judicial from the other powers of 
government, while it secures a more patient hear- 
ing to the parties, is a check both on the wrest* 



2?6 OF THE ADMINISTRATION 

fog of existing laws to serve a present purpose, 
and on the promulgation of captious and ambi- 
guous statutes, calculated to establish a tyranni- 
cal authority over the persons and property of 
the citizens. But, in as far as the judges hold 
their offices by an uncertain tenure, this check 
is incomplete. Dependent for their rank, and 
even their subsistence, on the favour of the peo- 
ple or the sovereign, they are under constant 
temptation to frame their decisions, not on 
grounds of equity or of law, but according to 
the fleeting passions of the multitude, or the in- 
terests and partialities of the prince. The obvi- 
ous remedy for this disorder is to provide that 
the judges shall not be removeable from their of- 
fices, except in case of malversation regularly pro- 
ved, and thus to free them from all danger of de- 
gradation in consequence of the conscientious 
discharge of their duty. * 

Even after this great and substantial improve- 
ment has taken place, it must be allowed that 
the power of deciding disputes among the citi- 
zens, and consequently of regulating, and even 
distributing, the whole property of the state, may, 
if unrestricted, be liable to most dangerous abuses. 
Judges may have private partialities inconsistent 

*• It is truly astonishing that the legislators of France, in 
1791, should have rendered the judges dependent on popular 
favour; particularly as these judges were to decide according 
to a fixed system of law, which the people could never follow 
mto all its refinements. 



OF CIVIL LAW. 277 

with a fair examination of the case ; they may 
be influenced, through hopes of advancing them- 
selves and their relations, to oppress a person ob- 
noxious to the court; or they may be induced, 
by avarice or solicitation, to sacrifice the dictates 
of conscience to their own interests, or the de- 
sire of gratifying their friends. 

In process of time, however, there arises a re- 
gular system of law, by which the opinion of the 
judge is directed and controuled. This system, 
which, from rude and simple maxims, rises at last 
to a connected and copious collection of rules, 
consists of two parts ; of consuetudinary, or, as 
it is usually styled, common law, and of statutes. 

Consuetudinary law, having its origin in the 
authority naturally attached to sent ences pro- 
nounced in former disputes, and to the opinions 
delivered by the most respectable lawyers, must, 
to a certain extent, be co-eval with the establish- 
ment of civil courts. 

It is natural for a judge, when a cause invol- 
ving considerable difficulty is brought before him, 
to enquire into the opinion of the best law wri- 
ters, and into the nature of the awards which 
in analogous cases had been pronounced. To 
examine these authorities, and ascertain by strict 
analysis how far the views of equity, by which 
the former decisions had been guided, were ap- 
plicable to the present suit, is like discussing the 
argument with an impartial friend, and eliciting 
the truth by a comparison of several opinions. 



278 OF THE ADMINISTRATION 

For this purpose, among others, it became cus- 
tomary for courts to record their decisions, after 
which judges would seldom have sufficient con- 
fidence in themselves to give sentence, without 
enquiring into the views of equity, or maxims of 
law, that had influenced the awards of their prede- 
cessors. When such decisions were conformable to 
the impressions on their own mind, they would 
proceed to judgment with more satisfaction to 
themselves, as well as to the litigants ; but when 
they were at variance with what they thought 
substantial justice, they would consider it as their 
duty to revise their opinions with the utmost care, 
that they might either discover the circumstan- 
ces by which the cases were distinguished, or 
be able to point out the sources of the former 
error. This is the natural and early authority 
of precedent, to serve as a guide and assistance 
to the judges, not to bind down their opinion, 
and fetter their decisions : but in proportion as 
the number of concurring judgments on any point 
is increased, their authority will be strengthened, 
till at last it will appear presumptuous for one or 
a few judges to set up their own views against 
the accumulated wisdom of ages. 

The separation of law, as a distinct profession, 
has, at the same time, a tendency to give addi- 
tional influence to consuetudinary law. It is im- 
portant for the interest of their clients, that law r 
yers, through minute acquaintance with the prin- 
ciples of old decisions, and the opinions of cele- 



OF CIVIL LAW. 279 

brated members of the profession, should be qua- 
lified to adduce all the precedents applicable to 
the matter at issue. The acquisition of this 
knowledge requires much labour and study, while 
its application demands the most refined inge- % 
nuity in discovering similitudes to those prece- 
dents which are favourable, and distinctions from 
such as are adverse. Compared with this, all 
other branches of the profession are simple and 
easy. Accordingly, it is to his expertness in this 
exercise of memory, of judgment, and not unfre- 
quently of imagination, that a lawyer chiefly 
trusts for emolument and fame. Minute acquaint- 
ance with the nature of former decisions, and 
with the exact point, sometimes almost evanes- 
cent, by which those that appear contradictory 
may be reconciled, or those that appear similar 
may be distinguished, is what he is most anxious 
to display ; and precedent is what he comes at last 
to consider as the only proper sanction of any 
award. The law is gradually formed into a great 
system, whicji, if not entirely consistent in all its 
parts, is rendered apparently so by refinements, 
fictions, analogies, and metaphysical subtilties ; 
and justice with regard to the particular matter 
in dispute is considered as of very inferior im- 
portance to the beauty, order, and stability of 
the law. Judges, educated in the habits of law- 
yers, and controuled by the opinions of the bar, 
are at the utmost pains to conform to precedent, 
or, when prevented from doing so by palpable 



2S0 OF THE ADMINISTRATION 

absurdity, to devise some distinction between the 
cases, which may serve as a ground of permanent 
exception to the general rule. Thus, the rules 
and exceptions of law become the object of an 
intricate science, which, whatever may be its 
merits in other respects, is extremely ingenious, 
and to a certain degree precise ; and this preci- 
sion controls that discretion in the judges, which, 
if always directed by probity and wisdom, might 
dispense more equal justice among the parties, 
but which various temptations, acting on the 
weakness of human nature, might lead them to 
abuse. 

Statutes are probably posterior to consuetudi- 
nary law. Man, especially in a rude age, seldom 
provides against evils from mere apprehension. 
Even after injury has been sustained, and the 
propriety of guarding against its recurrence might 
be thought apparent, he is frequently prevented, 
by prejudice, or indolence, from applying a 
prompt and effectual remedy. Accordingly, no- 
thing is more common, than that practical in- 
conveniencies, springing from the vagueness and 
contradictions of common law, or even gross in- 
justice, arising from the authority of rules and 
maxims inconsistent with the state of manners 
and opinions, should be submitted to for ages 
before a remedy is applied by the legislature. 
But, whenever a statute is enacted, it necessarily 
supersedes all such customs, however ancient 
and universal, as are adverse to the meaning of 



OF CIVIL LAW. 281 

its provisions. It is the declaration of a general 
rule by the highest authority in the state, by that 
power which is held to represent the will of the 
nation. 

The law, thus composed, partly of decisions 
of former judges or opinions of the most respect- 
ed lawyers, and partly of statutes enacted by the 
legislature, forms a body of rules for the direc- 
tion of the courts, which, being open to all, 
may be consulted in cases of difficulty, and may 
regulate, in the most impartial manner, the con- 
duct of the citizens. It is no doubt highly desi- 
rable that these rules be consonant to justice ; 
but it is perhaps still more important that they 
be accurate and unchangeable. He, who is aware 
of the consequences, may usually act in such a 
way as to secure himself against the known in- 
justice of a positive rule : but if decisions be 
fluctuating and inconsistent, a man may find 
himself in error even when most anxious to yield 
obedience to the laws of his country. The un- 
certainty of law, at the same time, by holding 
out to both parties reasonable hopes of success, 
affords the greatest encouragement to litigation, 
and, by lodging dangerous powers in the hands 
of the judges, tends to corrupt public justice at 
its source. 

It must be acknowledged, however, that no 
system of law has reached, or ever will reach, 
that perfection which could remove all uncer- 
tainty regarding the issue of a law-suit, and all 



282 OF THE ADMINISTRATION 

discretionary power in the judge. The matter 
in dispute must be simple indeed, if decisions 
adverse to each other may not be found, or opi- 
nions inconsistent with these decisions detected 
in the writings of eminent lawyers. Nor is this 
discrepancy in authorities the chief source of the 
acknowledged uncertainty of law. No two cases 
resemble each other in every point. When a dis- 
pute occurs, it will be similar, in some respects, 
to a cause formerly decided in favour of the 
plaintiff, and in other features, to one in which 
judgment was given for the defendant ; or per- 
haps it will contain specialties not to be found 
in either. Before it can be known which of these 
precedents, or whether any of them, strictly ap- 
ply, it is necessary to analyse the former deci- 
sions ; to ascertain, from the nature of the plead- 
ings, from the opinions of lawyers, by nice dis- 
tinctions, analogical reasonings, or a reference 
to established maxims and fictions of law, on 
what particular facts and principles the several 
awards were, or ought to have been, pronoun- 
ced ; and carefully to separate all essential cir- 
cumstances from their numerous concomitants. 
Having done this, we must compare each prece- 
dent, divested of its casual accessories, with the 
present case reduced to an equal simplicity $ 
and if it be found that essential points of opposite 
decisions enter into the present suit, then we 
must judge to which of the precedents it is most 
analogous, or whether the judgment should at- 



/ OF CIVIL LAW, 283 

tempt to reconcile and embrace the whole. In 
this most intricate process of thought, there is 
evidently the greatest room for hesitation and 
doubt, and the best informed lawyers will fre- 
quently be unable to conjecture on which side 
victory, after a long and arduous conflict, is 
likely to declare. 

In the construction of statutes, too, there is of- 
ten room for diversity of opinion : A law made 
on the spur of the occasion, to remedy some ex- 
isting evil, may be drawn up so as to bear on 
cases not in the contemplation of the legislature ; 
or its phraseology may countenance exceptions, 
which, if admitted, would disappoint the inten- 
tion of its enactment. A certain latitude in the 
interpretation of statutes must, in such cases, be 
left to the judges, and this discretion will gradual- 
ly be extended to other laws more precise in their 
expression, but either palpably absurd, or incon- 
sistent with present manners, or at variance with 
the general system of law. Judges must, in a 
manner, enter into the breasts of the lawgivers, 
they must consider the occasion of the statute, the 
evils it was intended to remedy, the advantages 
it was intended to secure ; and, disregarding its 
literal meaning, they must endeavour to pene- 
trate into its spirit and views.* In doing this, 
however, they become almost legislators ; and 
may, either from ignorance or design, extend or 

* See Blackstone's Coram. Introd. Sect. II. 
1 



284? OF THE ADMINISTRATION 

restrict a statute, so as to favour their own ideas 
of law, to serve the interests of their friends, or, 
with more honourable views, though as mischie- 
vous effects, to prevent injustice in the particu- 
lar case, at the risk of introducing perplexity 
and contradiction into the legal code. 

This want of precision inherent in the nature 
of general rules, whether formed by precedent 
or by statute, is much increased by the difficulty 
of ascertaining the exact merits of the case. Af- 
ter every possible circumstance, both in the pro- 
cedure and in the law, has been accurately fix- 
ed, the state of the fact must be left to the im- 
pression made by the evidence on the minds of 
the judges. Here there can be no check on 
partiality ; and it is, perhaps, of less consequence 
than might at first appear, to guard against 
abuses in the exposition of law, if the judges be 
left entirely uncontrouled with regard to the na- 
ture and proof of those circumstances on which, 
as facts already ascertained, the application of 
the law must proceed. It seldom happens that 
both parties agree in their statements of the ori- 
gin and progress of a dispute. To reconcile 
their contradictory averments, and ascertain the 
real nature of their difference, evidence must be 
adduced, and, according as that evidence may 
substantiate or overthrow their several allega- 
tions, different rules of law will become applica- 
ble. The judge, too, in his decision, may not al- 
ways sufficiently discriminate the law from the 



OF CIVIL LAW. 285 

fact, and hence will arise not only inextricable 
difficulty in reviewing his sentence, but also con- 
fusion in the precedents, while, in future law- 
suits, one party will contend that the judgment 
proceeded on maxims of law, and the other 
that it was framed on the special merits of the 
case. 

A system of law, accordingly, although reared 
with the greatest care and intelligence, if, aim- 
ing at precision, it profess to disregard equity 
when inconsistent with the perfection of general 
rules, must still leave an uncertainty in the re- 
sult of civil actions which will encourage litiga- 
tion, and expose the rights of the citizens to the 
ignorance, partiality, and corruption, of the 
judges. If, on the other hand, it temper law 
with equity, it must still further multiply all those 
evils. In either case, so much must be confided 
to the integrity of the judges, that each party 
will solicit them in private, and endeavour to 
bias their opinions by other considerations than 
those of justice or of law. In France, before the 
revolution, this practice prevailed in the most 
open and shameful manner : every litigant em* 
ployed the most powerful, most insinuating, or 
most beautiful of his friends, to visit the judges 
before they gave their decision, and even the 
least corruptible administrators of justice (such 
is the force of custom and example), came to 
consider a levee of the great, not as a reflection 
pn their probity, but as a flattering homage to 



286 OF THE ADMINISTRATION 

their rank and talents. In other countries, where 
this open infamy has not prevailed, there is rea- 
son to fear that recourse has sometimes been had 
to influence of a more private, but not less de- 
grading, nature. 

One of the most obvious means of guarding 
against the partiality of judges, is to increase 
their number so much, as to make it improbable 
that those, who might happen in any manner to 
be connected with the parties, should outvote 
the impartial members, or that any bribes which 
could be afforded should gain over a majority to 
the side of injustice. To this, however, there 
are many objections. An augmentation of the 
number of judges is, perhaps, more likely to in- 
crease, , than to diminish, their subserviency to 
the court. Each will be anxious to establish a 
claim for favours to himself or his relations, by 
exceeding the compliances of his brethren ; and 
when infamy is divided among numbers of re- 
spectable rank, it would seem that, in the public 
estimation, no portion of it attaches to any indi- 
vidual. It is true, that, in the great majority of 
civil actions, neither government, nor any power- 
ful individual, has an interest in corrupting the 
justice of the country ; but it is chiefly for the 
protection of the citizens in the comparatively 
few cases in which undue motives may be dread- 
ed, that precautions are requisite ; and in these 
cases the multiplicity of judges can afford no se* 
curity. 



OF CIVIL LAW. 287 

With regard to the ordinary administration of 
justice, all the consequences of increasing beyond 
a certain point the number of judges, are detri- 
mental. The advisers of the crown, believing 
that the appointment of a few persons of great in- 
fluence, though inferior talents and acquirements, 
will pass unnoticed by the public, and produce 
little real inconvenience (their judgment being 
enlightened, and their errors corrected by the 
superior abilities and information of their col- 
leagues), may be apt gradually to fill the bench 
with men despised by the bar, contemptible to 
the nation, and in every respect unqualified for 
the exercise of their important functions. The 
consultations, too, of a numerous bench, while 
they retard the business of the court, will be 
apt, from the desire of victory natural to man, 
to take the appearance of a debate, in which 
every trick of disputation will be employed, and 
the opposite doctrines and views of the fact will 
alternately be held up to ridicule. The weak, 
ignorant, and careless among the judges, if they 
attempt to think for themselves, must always be 
in danger of error, and often expose themselves 
to derision ; should they, on the other hand, ar- 
range themselves under more active and intelli- 
gent leaders, the decision wall depend entirely 
on a few, and the court will become a theatre of 
petty faction, equally subversive of justice, and 
inconsistent with the maintenance of public re- 
spect. Nor is this all \ he who is unsuccessful 



288 OF THE ADMINISTRATION 

will attribute his defeat to the absence of a par- 
ticular judge, to the influence of the opposite 
counsel, to a hasty opinion of a leading member 
of the court, to the ignorance of some, to the 
misapprehension, or partiality, of others ; to any 
thing, in short, but the want of justice in his 
cause. The debate will furnish him with new 
hopes, and he will endeavour, by every contri- 
vance which chicanery can devise, to procure a 
rehearing, or, in some other mode, to prolong a 
law-suit, with regard to which the opinion of a 
part of the bench confirms his self-delusion. 

It is obvious that decisions pronounced by a 
majority of a numerous bench must frequently in- 
jure the regularity and precision of legal systems. 
A majority, though concurring in the same award, 
may do so on grounds not only different, but irre- 
concilable with each other : some on the mat- 
ter of fact, others on the construction of a sta- 
tute, one on the application of a former prece- 
dent, and another on some general maxim or 
presumption of law. Had the opinions been col- 
lected on each particular point, perhaps it might 
have been found, that on every one of them a 
majority of the judges would have voted against 
that party, to whom the same judges, by their 
general decision, decreed the victory. How is 
such a sentence afterwards to be adduced as au- 
thority ? How is its bearing on the various to- 
pics connected with the case to be appreciated? 
If it be viewed in the aggregate, it speaks one 



OF CIVIL LAW. 28() 

language, if in its separate parts, another. In 
the first view, it is inapplicable to any future 
question differing from it in the slightest cir- 
cumstance ; in the latter, it must be taken from, 
imperfect reports of the speeches of the judges, 
or perhaps searched for in motives, which, al- 
though unavowed, influenced the members of 
the court. In this inextricable confusion, the 
advantages of systematic law are gone, and the 
judges are left without control, the people with- 
out a guide, among imperfect and inconsistent 
precedents. In Scotland, when fifteen judges sat 
upon the bench, this was universally acknow- 
leged to be the most obvious, and most injuri- 
ous, defect in the administration of justice ; and 
accordingly, in all the proposals for correcting 
those defects, the restriction of the number of 
judges formed a part, with regard to which no 
difference of opinion arose, except as to the ex- 
tent to which the reform should be carried. 

As a more powerful check on the partialities 
of judges, recourse has been had in England to 
the institution of juries, to whom, after various 
pleadings, by which it is attempted a priori to 
establish the law of the case, the facts are sent 
for trial. Several advantages attending this in- 
stitution are both obvious and important. The 
jurors, unknown till the commencement of the 
trial, chosen from a larger list previously commu- 
nicated to the parties, liable to challenge on any 

VOL. I. t 



290 OF THE ADMINISTRATION 

reasonable ground of suspicion, and excluded 
from every kind of influence after their nomina- 
tion, are guarded, as completely as precautions 
can guard them, from every approach of partiali- 
ty or corruption. Nor, according to the theory 
of the institution, are any functions entrusted 
to them, to which plain common sense, with 
good intentions, is not fully competent. In many 
cases, men engaged in the more active scenes 
of life, who have experience of the matters in 
dispute, will be better qualified to weigh the evi- 
dence, than judges to whom the whole subject 
and its phraseology are entirely new; and where 
reparation in damages is sought, it is likely that 
a jury, chosen from the same ranks in life, and 
exposed to similar injuries, will be better able 
to appreciate the real loss which has been suffer- 
ed, than those, who, by their employments and 
habits, aire removed from the business, and in 
some degree from the feelings, of common life. 
Other advantages have arisen from the intro- 
duction of juries, which, though not peculiar to 
that institution, have never been so completely 
attained by any other. Judges, partly from in- 
dolence or hurry of business, and partly from 
their attention being too much engrossed by ab- 
stract principles of law, are extremely apt to fall 
on devices, by means of committees or commis- 
sioners, for having the witnesses examined in pri- 
vate, and the depositions afterwards submitted in 
writing to their consideration. That this is a 



. OF CIVIL LAW. 291 

very defective mode of taking proof can scarce- 
ly be doubted. As much may frequently be 
drawn from the manner in which witnesses give 
their evidence, as from its substance, and, in 
cases in which proof is opposed to proof, and 
each consistent in itself, there is scarcely any 
other means of ascertaining the truth. Nor is it 
possible, even with the best intentions, so to state 
the import of evidence, as to prevent many mis- 
apprehensions of its nature, or strength, which 
other answers and further details would have ef- 
fectually removed. When the commissioner has 
any bias, he may easily state the evidence in 
a manner apparently candid, but calculated to 
convey a false impression of its nature ; and 
the counsel of one of the parties, from inat- 
tention or want of acuteness, may be unable to 
point out with precision the fallacy of the state- 
ment. The institution of jury trial, as practised 
in England, requires that all the witnesses be 
examined in open court, before those who are to 
decide according to the evidence, and by thus 
enabling a juryman to investigate any point which 
he does not fully understand, precludes, in as far 
as possible, mistakes respecting the credibility of 
the witnesses, or the import of what they meant 
to declare. 

It is also of the utmost consequence to the 
precision of consuetudinary law, that the exact 
meaning and extent of the decisions, which are 



£92 OF THE ADMINISTRATION 

one day to become precedents, be accurately as- 
certained. But, if both the fact and the law be 
submitted to the same tribunal, this can scarcely 
be effected. It will always remain matter of doubt 
how far the decision was grounded on the one, 
and how far on the other. The precedents will 
therefore become more contradictory, or at least 
more difficult in their application to new cases 
involving some variety in the circumstances, and 
the advantages attending the structure of a re- 
gular system of law, whether in guarding against 
partiality, or discouraging law-suits, will be ma- 
terially impaired. But when the general rule of 
law is to be determined by one set of men, and 
the particular facts of the case by another, these 
two branches will be kept distinct, and each di- 
vested of all extraneous considerations, by which 
the attention might be distracted, or the judg- 
ment perplexed, This is, at least, the theory, 
though it may not always be the practice, of the 
English courts. The law is committed to the 
judges, and the facts to the jury, neither of whom 
ought to interfere with the province of the other. 
Whether the same advantages might be pro- 
cured by the establishment of separate judges to 
try the law and the fact, it must be difficult, in 
the absence of direct experience, to decide. It 
is not improbable that juries, bringing with them 
that ardour which usually accompanies the dis- 
charge of an occasional duty, may investigate a 



OF CIVIL LAW* 29$ 

matter of fact with more perseverance than fixed 
judges, who, though they might acquire greater 
expertness at detecting fraud and weighing con- 
tradictory testimonies, would be less anxious with 
regard to each particular issue, and more apt to 
fetter themselves in their enquiries by inflexible 
rules of evidence. Nor would it be easy to con- 
fine a court, instituted for the special purpose of 
trying the facts, to the branch of the cause sub- 
mitted to their decision. Instigated by that am- 
bition of extending its jurisdiction which seems 
natural to all courts (and which is so fully and 
amusingly illustrated by the fictions devised by 
the courts of King's Bench and Exchequer, to 
encroach on that of Common Pleas), # and find- 
ing opportunities in the connection which always 
exists between the law and facts of a case, each 
of the courts would gradually infringe the juris- 
diction of the other, and, in process of time, con- 
siderable uncertainty might prevail both with re- 
gard to the nature of the precedents, and the 
powers of these separate courts. 

Were it possible, then, in all, or in many, in- 
stances, effectually to detach the matter of fact 
from the points of law, it would appear that the 
institution of jury trial in civil causes, would be 
well entitled to all those commendations lavished 
upon it by English lawyers. But so complete a 
separation is seldom practicable. Until the ex- 

* See Blackstone's Comm. Book III. Chap. IV. 



294 OF THE ADMINISTRATION 

act state of the dispute has been ascertained by 
evidence, it is vain to quote precedents, and set- 
tle abstract points of law, perhaps inapplicable 
to the case. Nor in a country governed by sys- 
tematic lav/, is it possible to ascertain the real 
intention of parties, without taking into consider- 
ation those precedents, statutes, fictions, and inter- 
pretations, with which all the inhabitants are pre- 
sumed to be acquainted, and by their knowledge 
of which they are held to be guided in every 
transaction of their lives. Accordingly, after all 
the previous pleadings of the English courts in- 
tended to simplify the question, to ascertain where 
the dispute really lies, and to detach the fact 
from the law, a general issue, " which leaves 
every thing open, the fact, the law, and the equi- 
ty of the case,"* is usually sent to a jury, assist- 
ed, or rather directed, by the judge. 

How far a jury may be fitted to try causes of 
this description is extremely doubtful. That men 
employed in the ordinary business of life should 
acquire competent knowledge of a science, to 
the study of which the labours of a whole life are 
scarcely adequate, it is absurd to pretend ; yet, 
confiding in their superficial knowledge, or feel- 
ing a natural repugnance, when they are sworn 
to the exercise of their private judgment, to a 
tame acquiescence in the opinions of others, they 
may occasionally reject the doctrines taught from 

• Blackstone's Comm. Book III. Chap. XX.. 
2 



OF CIVIL LAW* %Q5 

the bench, and bring in a general verdict irre- 
concileabletothe laws of the land. Of this power, 
however unfit they may be to exercise it, no re- 
gulation can deprive them, without, at the same 
time, rendering the institution of juries a mere 
form, and leaving the whole of the cause in the 
hands of the judge. Were all verdicts special, 
barely finding the several facts that had been es- 
tablished by evidence, the task would remain of 
estimating the effect of these several facts upon 
the general question ; and it is usually in this 
balancing of facts of different importance, some 
favourable to the one party, others to his oppo- 
nent, that the difficulty of decisions altogether 
lies. Although, therefore, it has been solemnly 
decided that the judges determine the law, and 
the jury the fact, the power of the former is, in 
practice, reduced to directing the jury, who, 
paying only such deference as they think fit to 
these directions, pronounce a general verdict on 
the whole merits of the case. 

But when the jury venture to decide, in oppo- 
sition to direction, they will usually have deci- 
ded in opposition to law. They are confessedly 
unqualified to understand an abstract system. 
It is universally admitted that there are " cases 
" of strict right, or summumjus, where the rigor- 
" ous exaction of extreme legal justice is hard- 
" ly reconcileable to conscience."* In such cases 

* Blackstone's Comm. Book III. Chap. XXIV. 



£96 OF THE ADMINISTRATION 

in particular, unlearned jurymen, who have not 
acquired the habit of disregarding equity when 
put in competition with the regularity of prece- 
dent, will be apt to incline to the side of con- 
science, and to disregard even the best establish- 
ed principles of law. But, by doing so, they 
must unsettle former maxims, and introduce end- 
less confusion between the dictates of natural jus- 
tice and those rules which have grown out of 
practice, whose origin may be in customs disused 
and even forgotten, but which are so interwoven 
with the system that they cannot now be separa- 
ted from it without ruining its texture. 

In most instances, indeed, the jury will take 
the law from the judge, and, in doing so, they 
will be apt to take from the same quarter the 
facts, blended, as they frequently must be, with the 
law. They will sit on the trial without apprecia- 
ting the legal amount of the proof, or under- 
standing its bearing on the various precedents 
adduced by the counsel ; and at last they will re- 
turn a verdict which will be a mere echo of the 
judge's charge. From such a jury, it can hardly 
be contended that any considerable advantage 
will be derived. On the contrary, it may be 
feared, that, by becoming a cloak to conceal the 
power of the judge, and by freeing him from re- 
sponsibility, the institution of jury trial may en- 
courage him to risk doctrines, to mistate evi- 
dence, or to confound and perplex both, in a 



OF CIVIL LAW. QQ7 

bolder manner than otherwise he would have 
ventured to do. 

In England there are provisions, by bill of ex- 
ceptions, and writ of error, for correcting any 
legal mistakes of the judges, and new trials are 
granted, when there appears any error regard- 
ing the fact. The first of these correctives, how- 
ever, has now in a great measure fallen into dis- 
use, and neither it nor writs of error have any 
connexion with the institution of juries, but might 
equally, or perhaps more easily, be resorted to* 
if the decision were altogether left to the judge. 
The granting of a new trial is wholly at the dis* 
cretion of the judges, and though it may be a 
necessary preventive of errors tending to unset- 
tle the system of law, it, in a great measure, de- 
stroys the independence of the jury. When a ver- 
dict has been given against the opinion of the 
judge, whether on a point of law or of fact, his 
report of the case and of the evidence usually 
induces his brethren, who know nothing of ei- 
ther but from his statement, to grant a new trial j 
and as it is very unlikely that a second jury will 
be found as obstinate or as conscientious, call it 
which you will, as the first, the effect of giving a 
verdict contrary to direction is only to increase 
the delay and expenses of the suit. 

After all, then, reasonable doubts may be en- 
tertained, how far the institution of jury trial in 
civil suits is attended with all those advantages 
which have been attributed to it. In causes re* 



298 OF THE ADMINISTRATION 

quiring professional knowledge, special Junes, 
composed of persons conversant in the particu- 
lar branch of business, are indispensable, and 
when damages are sought, a verdict of impartial 
men, in the same rank with the parties, is more 
satisfactory than the opinion of a judge. But as, 
in ordinary cases, no accurate separation of the 
law from the fact is practicable, the jury must 
either follow implicitly the direction of the judge, 
or incur the hazard of unsettling the laws of the 
country. 

Amidst this perplexity, fearful of leaving the 
whole administration of justice to the uncontroul- 
ed discretion of judges, and apprehensive, on 
the other hand, that jury trial may either produce 
the same effect in a more concealed, and there- 
fore more dangerous, mode, or that it may weak- 
en and confound the ascertained principles and 
maxims of consuetudinary law, it may be proper 
to enquire, whether it be really necessary to es- 
tablish any system of abstract law, and to decide 
disputes on other grounds than the merits of 
each case, and the unalterable dictates of natural 
justice. 



OF CIVIL LAW. 299 

SECTION II. 

Of Decisions according to Equity. 

When judges are appointed, whom the parties 
may have an opportunity of influencing in pri- 
vate, or whom the government may control, by 
the prospect either of further advancement to 
themselves, or of promotion to their families, 
every possible check on venality is indispensa- 
ble ; and among these, the precision of law, 
whether statutory, or consuetudinary, holds a 
most distinguished place. But, were decisions 
to be given by juries, appointed with fairness, 
and prevented after their appointment from ha- 
ving communication with the parties, the pos- 
sibility of corruption would almost be removed, 
and it might be less certain that their proceed- 
ings would require to be directed, either by the 
declared will of the nation respecting anticipa- 
ted questions, or by former decisions of analo- 
gous disputes.* The purposes of society may, 
no doubt, require the introduction of some rules, 
founded not on obvious justice, but on views of 
policy, and those rules must be declared by sta- 
tute j but it is not equally clear, that, when the 

* See Harrington's System of Politics, Chap. IX. Aphor- 
isms 8th, 9th, and 10th ; and his Oceana, at the conclusion 
of the first part of the Preliminaries. 



300 OF THE ADMINISTRATION 

dictates of equity are plain and satisfactory, re- 
course should be had to any other authority. 

The principles of natural justice stand in need 
of no sanction either from statute, or consuetu- 
dinary law. Their authority, resting on the un- 
alterable distinctions of right and wrong, can 
neither be increased nor diminished by man. 
On pretence, however, of establishing more plain 
and intelligible rules, equity is shackled by a 
multiplicity of precedents and statutes, and that 
which ought to be level to the understanding of 
the people, is reared into a subtile and most in- 
tricate science. By this means law-suits are pro- 
bably multiplied and prolonged ; while it may be 
doubted whether rectitude of decision, the only 
compensation for such evils, is secured. 

No man, however accustomed to self-decep- 
tion, can be at a loss to discover the light in 
which his actions will appear to an impartial 
spectator : nor will it be difficult for him to an- 
ticipate, with regard to his claims against others, 
the award which a jury, looking only to justice 
in the present dispute, will pronounce. He may 
be mistaken respecting the strength of the evi- 
dence which he can adduce, or he may be igno- 
rant of the defences that may be opposed to his 
claim ; but whenever he has ascertained the real 
facts, as they will appear upon trial, he will know 
what decision he has to expect.* One great 

* " There is no difficulty at all in judging of any case what- 



OF CIVIL LAW. SOI 

Source of self-deceit is thus cut off. He who is 
aware that he cannot prove his own claims to be 
founded in justice, or that he cannot resist those 
of others on the acknowledged principles of 
equity, will readily relinquish a hopeless contest. 
Under an abstract system of law, this is by no 
means the case. A man may be certain of the 
justice of his cause without being assured of the 
result: he may acknowledge its iniquity, and 
yet entertain hopes of success. There is no cri- 
terion on which he can safely rely. In place of 
the unequivocal testimony of his own conscience, 
he is referred to the enormous mass of statutes, 
explanatory acts, precedents, exceptions, com- 
mentaries, law authorities, and legal analogies, f 
How is he to find his way in this wilderness of 
law ? Even the study of a whole life can give 
but a very incomplete acquaintance with this 
tremendous apparatus of justice; and if the 
cause be complicated, there are so many aspects 
in which the subject may be viewed, so much 
room for the nicety of logical or of verbal dis- 
tinction, so many authorities warring with each 
other, that the opinions of two lawyers, per- 
fectly impartial in the dispute, frequently dis- 

" soever, according to natural equity."— Harrington's System 
of Politics, Chap. IX. Aphorism 4th. 

•\ " Multiplicity of laws, being a multiplicity of snares for 
the people, causes a corruption of government." 

Harr. Syst. of Politics, Chap. IX. Aph, 1st. 



302 OF THE ADMINISTRATION 

agree. To an uneducated man, therefore, it 
must appear altogether an affair of chance, on 
which side the decision will ultimately rest. 
Even with the conviction that he is in the wrong, 
he may persevere in his claims, counting the ex- 
pense no more than may be risked for the chance 
of success. The intricacy of law has shewn the 
dishonest a possibility of enriching himself by 
chicane, and he may well take the risk who 
ventures a stake which his conscience informs 
him is already lost. 

Even should both parties be honest, in what 
is unfortunately no uncommon meaning of the 
word ; should neither wish to take any advan- 
tage disallowed by law ; still the inconsistency 
of the precedents, some legal maxim loosely ap- 
plied, some fanciful analogy, or subtile distinc- 
tion, will give plausibility to that self-delusion 
so natural to man. It has, therefore, been truly 
said, that the certainty of law is of more conse- 
quence than its justice. But perhaps the only 
.way of attaining this certainty is to render it 
just, to throw away your enormous folios, and 
refer to the judge within the breast. 

The necessity of consulting lawyers arises, in 
a great measure, from the accumulation of sta- 
tutes and the intricacy of consuetudinary law; 
and those consultations have in general a power- 
ful effect in encouraging law-suits. Nor can in- 
tegrity in the lawyer guard against this necessary 



OF CIVIL LAW. 503 

consequence of his profession. The party is so 
apt to give a false colouring to the whole trans- 
action, he dwells so much, even unintentionally, 
on the favourable circumstances, passing slight- 
ly over those that are adverse, that the lawyer's 
opinion is given on a case resembling, but in 
many respects differing from, the truth. Were a 
friend consulted who knew something of both 
parties, if not of the particular transaction, who 
could make allowance for the sanguine temper 
of the one, and draw probable inferences from 
the character of the other, who had it in his 
power to investigate all the circumstances, and 
to enquire into the opposite statements, useful 
and judicious advice might be procured ; but a 
lawyer, ignorant of every thing respecting the 
dispute, except the partial statement laid before 
him, must almost of necessity flatter his client 
with hopes of success. 

The habits of a lawver also lead him to aid the 

9 

delusion natural to an interested party. His 
whole life is spent, not in the impartial examina- 
tion of opposite opinions, but in searching for 
ingenious and plausible arguments. That his 
pleadings may be animated, he first seeks to im- 
pose upon himself; he is accustomed to colour, 
as highly as he can, the facts on one side, and to 
seek escapes, by misrepresentation and ridicule, 
from those on the other ; he habitually attends 
more to the plausible than the true ; he dazzles 
by the brilliancy of his fancy, confounds by the 



304 OF THE ADMINISTRATION 

boldness of his assertion, and bewilders by the 
sophistry of his logic. Of all men, he is the most 
unfit to form a calm and dispassionate opinion : 
From the moment he begins to study the case, 
he also begins to search for topics of eloquence 
or of argument ; and when he ought to be a 
judge, he is merely a pleader. 

We. may add with truth, that a lawyer has al- 
ways an interest, though not a sordid interest, 
in the promotion of law-suits. The most re- 
spectable members of the profession are apt to 
prefer to the casual interests of a client, that 
system of law, on which they consider the whole 
security of property to depend. If there be any 
thing novel in the case, if it promise to set at 
rest a controverted principle, or to complete 
and round a system, they will be under a strong 
temptation to advise the bringing of even a very 
hazardous action. u It is a pretty point to try" 
used to be the answer of a country attorney, and 
the same consideration, without being announ- 
ced, may secretly bias the judgment of more re- 
spectable lawyers. 

In a great majority of instances, the inferior 
members of the profession are first consulted, and 
by their advice the first steps are taken. When 
this is the case, the opinion of counsel is an un- 
meaning formality ; the hopes of the party are 
so much excited, his hatred of his antagonist so 
exasperated, his vanity so engaged in the sup- 
port of his assertions, that no advice could turn 



OF CIVIL LAW* 305 

liim from his purpose. His partial statement of 
facts will be dressed up by his attorney, and sup- 
ported by every argument which ingenuity can 
suggest ; and the counsel, thus deceived on all 
hands, and perusing a pleading in place of a fair 
representation, can scarcely fail to give his sanc- 
tion to what has already been resolved. It is 
surely no great breach of charity to suspect that 
inferior attorneys, when only they have an op- 
portunity of enquiring into the truth, will fre- 
quently pay more attention to their own emolu- 
ment, than to the interests of their clients, and 
that they will be disposed to give advice at once 
agreeable to their employers and profitable to 
themselves. Should the result be the reverse of 
their prediction, they can shift the blame from 
themselves on that uncertainty of law, which, 
notwithstanding the boasted perfection of the 
system, experience has rendered proverbial. 

Next to the prevention of law-suits, the short- 
ening of their duration is of the greatest import- 
ance to the general welfare, and this likewise 
would be effected by the proposed simplification 
of law. The proof, at present, contributes very 
little to lengthen a process. In England it is 
laid before a jury in a few hours ; in Scotland, 
it is taken, in as short a time, by one of the 
clerks of court ; but in both countries the 
rest of the procedure is endless. A cause is 
branched into infinite ramifications. In each, 
there must be declarations, defences, replica- 

VOL. Jl U 



306 OF THE ADMINISTRATION 

tions, rejoinders, sur-rejoinders, rebutters, and 
sur-rebutters ; there may be pleas to the jurisdic- 
tion, to disability, in abatement, or special pleas 
in bar of the plaintiffs demand ; and after all 
this has been gone through, the cause may be 
removed to Chancery, where a new, more tedi- 
ous, and more expensive process must begin, 

" The toils of law (what dark insidious men 

" Have cumbrous added to perplex the truths 

" And lengthen simple justice into trade) 

16 How glorious were the day that saw these broke, 

" And every man within the reach of right !"* 

If regard were had only to substantial justice 
in the particular case, few suits could be very in- 
tricate or tedious. The evidence seldom occu- 
pies much time, and for the jury to hear this evi- 
dence examined, and give a report of its effect 
on their minds, would terminate the suit. Lit- 
tle, if any, difficulty would arise from consider- 
ing the evidence in relation to the equity of the 
case ; for whenever the real state of the fact was 
ascertained, a very short conversation would be 
sufficient to fix the opinions of the jury, on the 
nature of the judgment to be pronounced. Of 
this dispatch we have examples in those referen- 
ces which are now so common in mercantile dis- 
putes ; although, from the parties having been 
guided by the established law of the country, it 
is incumbent on the arbiters to pay regard to it 

* Thomson's Wiater. 



OF CIVIL LAW, 307 

in their decisions, and consequently to enter, in 
some degree, into legal discussions. 

The expense, trouble, and vexation, arising 
from tedious law-suits are so well understood, that 
we may every day hear resolutions avowed of sub- 
mitting to injustice, in preference to seeking legal 
redress. Before the most trifling dispute can be 
settled, the expenses amount to a sum almost in- 
credible; and thus chicane supported by riches be- 
comes much more oppressive than open injustice. 
Costs are, no doubt, awarded in flagrant cases ; 
but while the actual outlay is seldom repaid, no 
compensation is made for the anxiety and time 
of a man whose subsistence may perhaps depend 
upon his industry. He who is prudent will, in 
such circumstances, avoid a law-suit by the sa- 
crifice of just claims, and, if his antagonist be 
wealthy or powerful, he will submit to every in- 
jury short of absolute ruin, convinced that the 
oppressions to be feared from insolent wrong are 
trifling compared with the oppressions of the 
law. Thus is property laid open to violation, 
and that security and equality of civil rights, 
which some philosophers consider as the sole ad- 
vantage of free government, overthrown. 

It is time now to enquire into the justice of 
the decision by which all these evils are to be 
outweighed. 

The very essence of law is to look to the uti- 
lity of the rule in future cases, rather than to 
equity in the present instance ; to do, in short, 



308 OF THE ADMINISTRATION 

what may be a direct act of injustice to one indivi- 
dual, if, in consequence of it, the system will be 
rendered more perfect, and future disputes or 
injustice prevented. But the principle on which 
such decisions are given is by no means unobjec- 
tionable. The community may have the power 
of sacrificing the property of an individual to 
the good of the whole, but they have no such 
right.* Perhaps the cases, in the contemplation 
of which actual injustice is committed, may ne- 
ver occur, or they may be of too little import- 
ance to afford an apology for such a deviation 
from rectitude. But, if public utility demand 
the establishment of a determinate rule, those 
who suffer for the good of others are entitled to 
a full compensation. It is sufficiently hard, even 
if fully indemnified, that they should be forced to 
relinquish their property without their own con- 
sent. To be deprived of it without equivalent, 
that others may be defended from future losses, 
that the system of law may be improved, or that 
some former decision may be supported, is mani- 
festly unjust. 

General rules can be formed only by attending 
to the principal features in which different cases 
may agree, without regarding the nicer shades, 
the almost imperceptible gradations, and some- 
times even the important circumstances, by which 
they are distinguished. Classification is the es- 
sence of the science of law, and this classification 

* Book I. Chap. I. Sec. IV. and V. 



m CIVIL LAW. 309 

must proceed on general similitude, and often on 
remote and fanciful analogies. As well might we 
attempt to fix by rule the shades of colour, as the 
discriminations of justice. But the view of law 
being directed solely to these general rules, which 
are seldom applicable in every particular to the 
actual question, all regard to equity between man 
and man is discarded. Hence the maxim, " sum- 
" mum jus, summa injuria," however contradic- 
tory in its enunciation, is fatally illustrated in the 
proceedings of every judicatory. To say that the 
laws are public, and that J:he citizens have them- 
selves to blame if they are ignorant of those rules 
which have been framed by the wisdom and ex- 
perience of ages, is to add insult to injustice. 
Their other avocations do not permit them to 
peruse and digest an enormous mass of statutes 
and reports, and it is here, more than in any 
other science, that 

" A little learning is a dangerous thing." 

The perfection of system is undoubtedly to ap- 
proach as near as possible to the individual case, 
by attending to distinctions which in a ruder age 
had been overlooked. Laws are not framed by 
philosophers, from abstract speculations, but pro- 
vided according to the wants and experience of 
society. Extremely simple at first, they are soon 
discovered to be unjust ; exceptions are introdu- 
ced, and these exceptions, in process of time, are 



310 OF THE ADMINISTRATION 

established into new rules, by which those former- 
ly existing are limited and explained. Farther 
experience, however, discovers farther defects, 
and seeks to obviate them by nicer distinctions, 
and multiplied exceptions. # It is easy to per- 
ceive that the tendency of all this refinement is 
to bring the rules nearer to the special circum- 
stances of each case. These more accurate rules 
stand between the old law and the equity of the 
case, as a species is intermediate between the ge- 
nus and individual. Every new exception arises 
from attending to some of the nicer discrimina- 
tions, and is therefore an approach to justice. 
Why, then, should we not at once attempt what, 
from the fluctuating interests and opinions of 
man, the progress of law, with all its refinements, 
can never attain ? By one exertion we might en- 
sure the attainment of our wishes, but this exer- 
tion we are too indolent or too timid to make. 
While we applaud ourselves on the introduction 
of a new exception, new varieties occur ; we 
swell the rules of law to such a number, that no 
mind can comprehend them, no memory retain 
them ; and, after all, we have scarcely made any 
perceptible advances towards substantial justice.t 

* See Millar's Hist. View of the Eng. Govt. Book II. Chap. 
VII. Sec. IV. 

f " Rien de plus puerile que les precautions prises sur ce 
** point par les Anglois. Pour pter les jugemens arbitrages, 
" ils se sont soumis a mille jugemens iniques, et rneme extra- 
u vagans , des nuees de gens de loi les devorent ; et avec la 



OP CIVIL LAW, 311 

Changes In manners, customs, and opinions, are 
gradually introduced. They must have taken 
place long before they are perceived by lawyers ; 
and they must have been perceived long before 
any alteration will be made in the laws. The 
habits of lawyers incline them to support the old 
and to oppose the new ; accustomed to the dark 
prospect of antiquity, they cannot bear the light 
which is diffused around them. A custom, how- 
ever reasonable, must have acquired the sanc- 
tion of age, before it becomes venerable in 
their estimation ; it must have been established 
for a time, " whereof the memory of man run- 
neth not to the contrary,' * before it can possess 
weight and authority.* Systems of law must, 
consequently, be in many respects inconsistent 
with the actual business of society, following, 
very slowly, those revolutions in manners and opi- 
nions, by which the affairs of life are so much in- 
fluenced and directed. To him who does not 
consider this vis inertlce of law, many of its rules 
and much of its procedure must appear as devoid 
of motive, as they are inconvenient and unjust. 

Justice is not, as systems of law would pretend, 
an abstract science, requiring a long and difficult 
education. It is implanted in the human breast ; 

u folle idee de vouloir tout prevoir, ils ont fait des leurs loix 
" un dedale immense, ou la memoire et la raison se perdent 
& egalement." — Consid. sur la Pologne par Rousseau, Chap, X, 
* Blackst. Comm. Introduction, Sec. III. 



332 OF THE ADMINISTRATION 

and, born with man, would grow up with him to> 
maturity, were it not choaked by noxious weeds. 
Destroy those notions, of law as opposed to equi^ 
ty, and justice will spontaneously arise and flou- 
rish. The moment that the real nature of the 
transaction is ascertained, the feelings of man- 
kind suggest the proper award. Let us then 
cease to accumulate statutes, precedents, and au- 
thorities; discarding all consideration of hypothe- 
tical cases, let us attend to the exact merits of 
those disputes or misunderstandings submitted to 
our judgment ; and let us do justice between man 
and man. 

By the present state of law, our moral feelings 
are perverted. Whatever evades direct prohibi- 
tion is permitted, although inconsistent with the 
paramount claims of equal justice. No longer 
solicitous to act justly, we are satisfied if we have 
acted legally ; and, while we avoid whatever 
might be the foundation of a law-suit, we con- 
ceive that our neighbour has no further claim on 
our behaviour. Hence a very loose and danger- 
ous morality. But to call our attention to the 
principles of equity, in place of those of law, 
would be to cultivate and strengthen the great 
and only safeguard of human virtue, our sense of 
duty. 

Were our actions submitted to the censure of 
impartial men, the decisions of our consciences 
would be confirmed by their award ; were- we 
called as unshackled jurors to pass judgment on 



OF CIVIL LAW. 3 1 3 

the actions of others, the acuteness^of our moral 
perceptions would be improved. No longer con- 
founded by subtile distinctions, or misled by au- 
thority, we should find little difficulty in discrimi- 
nating between right and wrong ; never should 
we have occasion to withhold our censure, on ac- 
count of universal practice arising from the tole- 
ration of law : vice would appear in her native de- 
formity, and the great virtue of justice would be 
imprinted on our hearts. 



SECTION III. 

Of Civil Statutes, 

Views of general utility, depending on infor- 
mation, reasoning, and experience, must be more 
various than the natural feelings of justice. To 
decide what is equitable, a man has only to con- 
sult his own bosom ; to ascertain what is expe- 
dient, he must acquire much previous knowledge, 
compare many opposite ideas, and attend to a 
multitude of circumstances very remotely con- 
nected with the immediate object of his enquiry. 
The conclusions of well-informed men, among so 
many sources of error, will often be at variance, 
and those who, from want of time or education, 
are deficient in the requisite information, will tie 

1 



314 OP THE ADMINISTRAlION 

altogether unable to form a reasonable opinion. 
Unless accurate rules be laid down, no one will 
know with certainty how he ought to act, so as 
to promote the general good ; but with the best 
intentions, the citizens may counteract each other's 
schemes, and the utmost confusion may prevail. 
Government must supply by statutes that want 
of knowledge to which every individual is expo- 
sed, and point out those rules of conduct, which, 
founded on views of general, and sometimes very 
remote, interest, could not be discovered by the 
natural feelings, or the ordinary penetration, of 
mankind. Such statutes are, for the most part, 
limitations of the rights of individuals, either pro- 
hibiting actions naturally innocent, ordering what 
are not naturally exigible, or, in some other way, 
fettering the right of private judgment, for the 
purpose of introducing uniformity of means or of 
ends in what is important to the general welfare. 
Such statutes must be promulgated before they 
can have any force, and in this respect, they are 
easily distinguishable from the laws of justice, 
which require no sanction from human authority. 
They must also be interpreted according to the 
obvious meaning of the words, for wherever their 
application is doubtful, they cannot form a rule 
for the conduct of the people. Those, whose ac- 
tions are not injurious to the equal rights of 
others, cannot justly be restrained from what po- 
sitive law does not directly prohibit, nor compel- 
led to what positive law does not plainly enjoin. 



OF CIVIL LAW. 315 

Statutes, with the exception of such as are cor- 
rective of the errors of common law, are reduci- 
ble to two great classes. 1st, Those which, though 
consonant to the dictates of equity, are intended 
to introduce a greater uniformity into practice 
than could arise from natural feelings ; and, 2dly, 
Those which, founded on views of expediency, 
introduce duties or rights, unsupported by the 
law of nature, though not necessarily in opposi- 
tion to it. 

I. It sometimes happens, that justice does not 
pronounce, in a manner sufficiently clear and pre- 
cise, to prevent the recurrence of disputes, and 
to secure uniformity of decision even in cases 
strictly analogous. The sentiment of equity may 
result from the balance of a number of feelings, 
tending towards opposite judgments ; and though 
many jurymen may be influenced by the general 
rule of morality established by experience and 
custom, others may be swayed by some peculi- 
arity in the case. This wavering sentiment of 
justice might frequently lead to disputes, which 
inconsistency in the decisions would still further 
promote ; wherefore, it is expedient that the 
state should interfere, and, by a declaration of 
the general will, remove the uncertainty of na- 
tural law. A few examples will illustrate this 
fluctuation of equity, and show in what manner 
it is removed by statutory enactments. 

No doubt can be entertained, that, before a 
certain age, a young man ought not to be en- 



3 1 5 OF THE ADMINISTRATION 

trusted with the management of his property, or 
the regulation of his own conduct ; and that con* 
tracts, entered into before what are called the 
years of discretion, are in themselves invalid. So 
far the dictates of equity are clear. But how shall 
it be ascertained at what particular year the in- 
capacity of non-age shall cease ? To some it may 
appear hard to delay the possession of property 
after the mind is at all improved ; others may 
think it reasonable to secure a young man from 
the effects of his own inexperience and passions. 
One person will be fully qualified to manage his 
affairs at an early age ; another, with equal or 
superior talents for speculation, will be deficient 
in prudence during the whole of his life. To 
leave it to a jury to determine, in each case, 
whether the young man was competent to enter 
into legal transactions, would be to introduce 
the utmost uncertainty into contracts, to perplex 
the ordinary business of life, and tor encourage 
law- suits of a nature very adverse to family con- 
cord. A statute, therefore, fixes the age at which 
every man shall be considered as entitled to ma- 
nage his affairs, and to this general declaration 
of the national will, notwithstanding any pecu- 
liarity in the case, it is the duty of every jury to 
conform. 

That the nearest relations should succeed to 
the property of the deceased, is a rule establish- 
ed in every country of the world, and therefore 
deducible from some principles of human na* 



OF CIVIL LAW. 317 

tare.* But the variety in the laws of different 
nations seems to prove that there are no invari- 
able rules by which the nearness of that relation- 
ship, which entitles to succession, can be ascer- 
tained. Nor is the rule itself so firmly establish- 
ed in the feelings of mankind, as to be always 
superior to the desire of accommodating it to 
special circumstances. The nearest heir may be 
so profligate that the property will immediately 
be squandered, or so opulent as to have no oc- 
casion for an addition to his fortune, while a re- 
lation, next in degree, may be a worthy man, 
who has been unfortunate in life, and whom a 
small capital would enable to make a respectable 
provision for his family. Against such consider- 
ations, the idea of right, founded in a great 
measure on the customary succession, would 
sometimes prove an insufficient defence ; each 
deviation would tend still further to weaken the 
rule ; and every claimant would natter himself 
that some peculiar hardship in his own situation 
would justify a departure from the usual line of 
succession. Hence would arise law-suits of the 
most intricate nature, which would loosen all the 
bonds of family attachment. To prevent such 
consequences, it is requisite that the legislature 
should promulgate a law, fixing an invariable or- 
der of consanguinity, and providing that this or- 
der shall in no case of succession be departed 
from* 

* See Chap, V. Sec IV. 



31 S OF THE ADMINISTRATION 

When a person has continued for a consider- 
able time in possession of a right, to which he 
thought himself entitled, his expectation of con- 
tinuing to enjoy it becomes so strong, that there 
appears injustice in depriving him of it on the 
discovery of a prior title which had been altoge- 
ther forgotten. In course of time, too, those 
proofs may be lost, which would have established 
his right ; and it is requisite, for the security of 
every proprietor, that his possession should not 
for ever be questionable. These considerations 
have established a certain term, in almost every 
country, after which claims are said to be pre- 
scribed ; that is, are no longer admitted to proof. 
But what the term of prescription ought to be, 
whether one, or ten, or fifty, years, cannot be 
determined by the general feelings of mankind.* 
That oppressive law-suits may be prevented, and 

* By the older Roman law, moveables prescribed in one 
year, immoveables in two years : by the later law, three years 
were required for moveables, and ten years for immoveables 
inter prcesentes, or twenty inter absentes. 

Hein. Inst. Lib. IL Tit. VI. 

By the ancient law of Scotland, land prescribed in a year 
and day, it now requires forty years. — Er shine's Institutes, 

In England, there is no prescriptive right to what, in legal 
phraseology, is called corporeal hereditaments ; but this de- 
fect is remedied by the statute of limitations, 32d Henry 
VIII. c. 2, by which all actions for recovery of possession are 
barred, if grounded on the possession of the demandant him- 
self, in thirty years, or if grounded on the possession of his 
predecessors in fifty years, and the action by mere writ of 
right, by which the property itself might be directly claimed, 



OF CIVIL LAW. 319 

the right of property secured, the legislature sup- 
plies this defect in equity, fixing the exact term 
of prescription by a general law. 

When a merchant is insolvent, it is obviously 
just that his property should be divided among 
his creditors, in proportion to the several debts ; 
and in order that this may be fairly done, and 
that the creditors, in attempting to gain prefer- 
ences, may not ruin the property, it is requisite 
that trustees should be appointed to act for the 
whole. But many disputes might arise respect- 
ing the fact of insolvency, as well as the manage- 
ment of the affairs, and therefore a statute is ne- 
cessary to ascertain what constitutes an act of 
bankruptcy, and to fix the manner in which 
trustees shall be chosen, their management su- 
perintended, and the property divided among 
the creditors. 

These instances may illustrate the necessity of 
supplying the deficiencies of the sentiment of 
equity by positive statute. Of such statutes it 
may be remarked, that they should not be pro- 
mulgated, unless when the moral feelings are so 
defective in precision, that the want of a fixed 
rule might be attended with considerable incon- 
venience ; nor ought they ever to exceed, either 
in the number or extent of their provisions, that 
necessity by which they are justified. To multiply 

is barred in sixty years. — Blackst. Com, Book II, Chap, XVII, 
*nd Book HI, Chap, X, 



320 OF THE ADMINISTRATION 

statutes occasions almost all the inconvenience* 
inseparable from consuetudinary law ; the same 
difficulty in interpreting them and in reconciling 
their contradictions, the same impossibility of their 
being fully understood by the people, the same 
necessity of juries being directed by the court, and 
the same substitution of ideas of legality for those 
of moral rectitude. But while they merely add 
precision to equity, they will be so simple and 
clear in their enactments, that neither the parties 
nor the jury can feel difficulty in their application. 
To fix the age of majority, or the term of pre- 
scription, would require only a single sentence ; 
nor would many words be necessary to point out 
the order of succession in almost every possible 
case. The regulations respecting bankruptcy 
must, of course, embrace a variety of objects ; 
but the experience of Scotland, although the 
present bankrupt law is not without defects, will 
show, that even such statutes are capable of that 
clearness in their enactments which renders them 
intelligible to the unlearned, and usually precludes 
law-suits respecting those modes of procedure 
which they enjoin. It is chiefly by going beyond 
the proper boundaries of statute law, and endea- 
vouring to provide for cases which might be more 
satisfactorily decided on their own merits, that 
difficulty, perplexity, and inconsistency, are in- 
troduced into the civil code, 

II. One of the great and original purposes of 
society is to increase, by combination, the powers 



OP CIVIL LAW. 32 1 

of man ; an advantage which can seldom be pro- 
cured without some diminution of his natural 
rights. He must submit in every thing, not in- 
Consistent with the great rules of justice, to the 
directions of a majority* or of the legislative 
power which acts in name of the nation. He 
must perform whatever they prescribe ; he must 
abstain from whatever they prohibit* This obe- 
dience is essential to political combination, and 
is fully compensated to each individual, by the 
many and important advantages derived from the 
social union.* 

These restrictions of the natural rights of in- 
dividuals are intended to promote the public 
good : being suggested by comprehensive, and 
sometimes very remote, views of utility, opposite 
opinions may be entertained respecting the pro- 
priety of their enactment; and their existence can- 
not be certainly discovered, either by the moral or 
intellectual powers of man. They are not, in all 
cases, contrary to natural justice* but they are 
never enacted solely from views of equity* They 
are enforced in one country, and neglected in an- 
other ; not because the one nation thinks them 
just, and the other unjust, but because, in their 
particular circumstances) the one considers them 
as useful, the other as unnecessary, or hurtful. 

Regulations enforced by the community, from 
views of public advantage, are very various and 

* Book I. Chap. I. § IV. 

vol. i. x 



322 OF THE ADMINISTRATION 

important. Under this head are included all laws 
of police ; laws for forming and repairing roads, 
bridges, and canals, by which particular citizens 
are forced to relinquish their property for a just 
equivalent ; regulations of trade ; every kind of 
test or exclusion from office on account of opi- 
nions held to be dangerous to the public safety ; 
the collection of the revenue, the commission of 
the requisite authority and power to public func- 
tionaries ; and, in general, whatever institutions, 
or regulations, are demanded by the exigencies 
of the state. 

In these cases, as conscience is silent, and 
Opinions will vary, statutes must be promulga- 
ted, declaring explicitly what is considered as 
necessary for the good of the nation ; and where- 
ever the statute is not obviously applicable, the 
natural rights of the citizens remain unrestrict- 
ed. That law which is not intelligible to a jury, 
cannot justly be enforced. It being impossible 
to discover the rule otherwise than by the en- 
actment, there can" be no obligation but what 
arises from the statute ; and if this statute be so 
ambiguously expressed, that a man of plain un- 
derstanding is at a loss to discover its import, he 
cannot with propriety be held to its observance. 
To pretend that a person of ordinary capacity 
and attainments must regulate his conduct by 
what only a lawyer can understand, is perfectly 
absurd. But if the law be clear and explicit, the 
citizens may justly be held to its observance, and 



OF CIVIL LAW, 323 

an ordinary jury must be perfectly competent to 
the decision of every law-suit to which its provi- 
sions can apply. 



CHAPTER II. 

Of the Administration of Criminal Law. 

SECTION I, 

Of the Right of Punishment. 

The frequency of punishment is one of the most 
striking features of civilized society. In every 
district immense buildings are erected to con- 
tain the miserable victims of justice, and not a 
day passes without witnessing the legal infliction 
of confinement, ignominy, pain, or death. Many 
perish in those receptacles of wretchedness, aban- 
doned and disowned by their relations ; while 
others are exhibited to the public under suffer- 
ings that afflict humanity. 

Nothing can be more interesting than an en- 
quiry into the origin of a right so frequently act- 
ed upon by society ; nothing more useful than to 
ascertain in what degree it is supported by the 
principles of justice. 

The right of punishment is evidently no branch 
of that of self-defence. An individual, and, in 



OF CRIMINAL LAW, 325 

his name, the state, may have a right to prevent 
the commission of crimes, without having that of 
punishing them, after they have been consumma*. 
ted, and can no longer be recalled. If it should be 
said, that the dispositions evinced by the criminal 
create a probability of future excesses, against 
which it is reasonable for the community to pro^ 
vide, this would justify the punishment of bad 
dispositions in whatever manner they had been 
displayed ; or rather it would entirely fail in jus- 
tifying the punishment of what is past, although 
it might be the foundation of a claim for security 
respecting the future.* 

This right of government, like all others, has 
been derived, by some writers, from implied con- 
sent. A man, by living in society, and by accept- 
ing of protection against the crimes of others, is 
said to come under a tacit obligation to submit 
to punishment, if he himself should commit a 
crime. Government therefore merely exercises 
that power which each man naturally possessed 
over himself, and had virtually relinquished to 
the community. *f* 

It would be a sufficient refutation of this opini- 
on to refer to the objections already stated against 

* Swearing the peace in England, is a mode of being secu- 
red against apprehended violence; but neither in that country 
nor any other, is the most rancorous malice punished, however 
strongly it may have been evinced, unless it lias led to direct 
injury. 

f Rousseau du Contrat Social, Liv. IL Chap. V. 



S26 OF THE ADMINISTRATION 

implied contracts between the citizens and the 
state. But in this case there are also particular 
objections. The greater part of those who incur 
punishment, for violations of property, can scarce- 
ly be said to have experienced the benefits of pro- 
tection, for this plain reason, that they never had 
any property to protect* On the other hand, those 
who enjoy protection of their ample possessions 
are in little danger of incurring the vengeance de- 
nounced against robbery and theft. By the laws 
in favour of property, the rich are protected, and 
the poor only are punished. This is surely a sin- 
gular compact, by which one man becomes liable 
to the penalty, while another reaps all the advan- 
tages of the agreement. 

The same author, who has derived the right of 
punishment from the consent of the criminal, has 
assigned it another origin, in the right of con- 
quest.* But to suppose that a crime is a decla- 
ration of war against the whole of a community 
is an artificial and groundless fiction. The thief 
thinks of nothing more than appropriating to 
himself some commodity belonging to another, 
which may maintain him in idleness, or procure 
him immediate enjoyment. The idea of his being 
a public enemy, who, by levying war against the 
country, exposes himself to such treatment as the 
vanquished may expect from his conqueror, nei- 
ther occurs to him nor to the person whom he 

P Rousseau du Contrat Social, Liv. II. Chap. V. 



OF CRIMINAL LAW. 327 

has injured. Besides, we are not advanced, by 
this fiction, one step in our enquiries. The ques- 
tion recurs, on what principle we are justified in 
inflicting pain on a vanquished enemy ; and to 
answer, that it is by the law of conquest, is to 
substitute force for justice, and to remove all mo- 
ral distinctions between right and wrong. 

Let us leave, then, these presumed intentions 
of the criminal, and look to the real ends for 
which punishment may be inflicted. In all cases, 
it must be intended to serve one of these three 
purposes ; either to reform the offender ; or to 
satisfy the indignation of mankind ; or to pro- 
mote the general good. An examination of 
those different views will probably lead us to the 
principles on which punishment is approved of 
as just. 



I. Of Punishment for the purpose of Reformation. 

The reformation of the criminal does not ap- 
pear to be the original foundation of the right of 
punishment, or to enter into the views of early 
legislators. In rude ages, punishments are both 
awarded and inflicted by the injured party, who 
cannot be presumed to intend the good of his 
enemy. Savages are headstrong and violent; 
they hate their antagonist without measure ; and 
seek to satiate their rage in the easiest and most 
effectual mode, without paying any regard to the 



328 OF THE ADMINISTRATION 

ultimate advantage of him who has offended them. 
Indeed, were reflection to carry them to this con- 
tingent effect of coercion, such an idea would ra- 
ther induce them to consider their vengeance as 
incomplete. 

It is only in more civilized times that mercy 
mitigates the thirst of vengeance, and that, even 
in punishing guilt, a wish is felt to reform the 
criminal. It may be doubted, however, whether 
this desire can of itself justify the infliction of 
pain. Misery is, no doubt, the inseparable com- 
panion of guilt, and whatever tends to eradicate 
vicious principles must, in the same proportion, 
diminish the wretchedness of the criminal. Nei- 
ther can it be denied that punishment may have 
this tendency, and consequently that it may pro- 
mote the best interests of the culprit. It seems 
impossible, however, to derive any right from this 
adventitious effect. Each man's happiness being 
entrusted to his own care, no other person, mere- 
ly with a view to his advantage, can control his 
conduct. If we see our neighbour running head- 
long into misery, we may warn him of his dan- 
ger, and advise him to change his course; but 
we can have no pretence for forcing him to adopt 
our opinions, and to walk in that track which we 
inform him leads to happiness. Should it be ob- 
vious that he is fast dissipating his fortune and 
ruining his constitution, we have no right, on 
that account, to put his estate under trustees and 
himself into an hospital. This might perhaps be 



OF CRIMINAL LAW, QQQ 

for his ultimate benefit ; but while he retains his 
reason, he must be allowed to act for himself, 
and to promote his own welfare in whatever way 
he thinks proper. To employ coercion with a 
view solely to reformation is to decide for ano- 
ther where happiness is to be found, to force him 
to adopt our ideas, and to compel him to prefer 
our judgment to his own. It is even more than 
this, for our instruction is begun by diminishing 
his happiness, by subjecting him to present pain, 
as an introduction to w r hat he will scarcely con- 
sider as future pleasure. Whence can one man, or 
any number of men, derive the right of forcing a 
fellow-creature to abandon his principles and ha- 
bits, in a mode which, though ultimately for his 
benefit, is beyond all others the most abhorrent 
to his nature ? 

Nor can we be certain that punishment will 
produce the desired effect ifyon the delinquent. 
Some it may lead to reflection and amendment, 
while others it will only harden in their guilt. 
Even in children, pliable as their minds usually 
are, we find the greatest variety in dispositions, 
to which we must carefully adapt our modes of 
discipline. Some must be treated with gentle- 
ness, others awed by authority ; many must be 
allured by curiosity, and encouraged to perseve- 
rance by well-timed commendation, while a few 
must have their indolence overcome by fear, or 
their perverseness corrected by chastisement, 



330 OF THE ADMINISTRATION 

When the disposition of the child has been con- 
firmed, or partly counteracted, by the habits and 
reflections of the man, when new propensities 
have arisen, and a thousand accidental circum- 
stances have left deep and lasting impressions on 
the mind, this diversity of character will be such, 
that, without a long and intimate acquaintance 
with the individual, it must be impossible to fore- 
see the effect likely to result from coercion. Pu- 
nishments, that they may operate reformation, 
would require to be adapted to the particular 
habits and dispositions of each criminal, and 
therefore to be inflicted only by his most inti- 
mate friends. But those with whom he is so 
closely connected will probably be abandoned to 
similar vices, or prevented by their feelings from 
applying, with sufficient determination, so severe 
a remedy. Left to the discretion of strangers 
little interested in riis fate, the penalties of the 
law will irritate the mind of the delinquent, ra- 
ther than awaken him to contrition for his faults. 
But if punishment fail in producing reformation, 
it must increase the -misery of him whose ulti- 
mate happiness was its avowed object ; for to the 
torments of a wounded conscience, from which 
he is not relieved, it has added some positive 
pain or disgrace : the venom still rankles in his 
heart, while the antidote corrodes his entrails. 
Or should the criminal die before his amend- 
ment is complete, we have only embittered a 



OF CRIMINAL LAW. S3 1 

portion of his days, without giving him a taste of 
the comforts of innocence and peace. 

The punishment of children, it is true, rests 
entirely on this foundation ; to be just, it must 
be intended to counteract their evil propensities, 
and to promote their future good. But the two 
cases are dissimilar. The education of children 
is entrusted to those who are best qualified to 
inflict punishments, so as to promote their future 
welfare ; who are the most strongly interested 
in their happiness, who have been near them from 
their birth, and who had it in their power to 
watch every infant passion as it rose. This power 
is granted only while the reason of the child is 
not sufficiently matured for the direction of his 
conduct, when vices are most easily eradicated, 
and virtues most easily implanted in the human 
breast ; and when those associations are formed, 
and those habits begun, which may give a colour 
to all his sentiments and actions. As soon as the 
child attains to reason, the authority of the father 
is reduced. He may still interfere by advice, 
recommended by his experience, and enforced by 
habits of submission to his will ; but to use co- 
ercion or inflict pain, merely to promote the hap- 
piness of his child, is no longer just or reasona- 
ble. The period of manhood is accordingly in 
civilized communities the termination of the pa- 
rental power ; and its continuance in Rome du- 
ring life can be accounted for only by that attach- 
ment to old customs which was so remarkable 



332 OF THE ADMINISTRATION 

among the Romans, and which probably arose 
from their slow progress in refinement.* 

A strong view of the difficulty of producing 
reformation by punishment, joined to other ob- 
jections, which we shall afterwards consider, seems 
to have led a late author to disapprove of all 
kinds of coercion, and to recommend that its 
place should be supplied by energetic instruc- 
tion.t Perhaps a task more difficult could not 
be assigned to man. It would require the most 
rare conjunction of prudence, forbearance, pene- 
tration, reason, and eloquence ; and he who pos- 
sessed such high qualities and attainments might 
surely be better employed than in endeavouring 
to reclaim a single individual from vice. 

Thus the reformation of the criminal does not 
seem to be any just ground of punishment. The 
right of coercion must be derived from other 
principles : but, when a crime has been commit- 
ted, and the proper degree of punishment is 
otherwise ascertained, humanity and sound po- 
licy should prompt us to inflict it in that manner, 
which, by reforming the criminal, may ultimately 
compensate to him the pain and disgrace brought 
upon him by his guilt. 

* Locke on Civil Gov. Book II. Chap. VI. Millar's Ori- 
gin of the Distinction of Ranks, Chap. II. Sec. II. 
f Godwin's Enq. concerning Pol. Justice, Book VII. 









OF CRIMINAL LAW. 333 



IL Of Punishment to satisfy the Indignation of 
Mankind. 

When an injury is committed, resentment is 
immediately excited in the breast of the sufferer. 
He is not only deprived of some good which he 
enjoyed, or loaded with some unmerited evil ; but 
the dignity of his character is impaired, and that 
sense of security which is essential to his com- 
fort is weakened or destroyed. His adversary 
has shown that he despises him too much to ob- 
serve towards him the ordinary rules of justice ; 
he has trampled on his rights, and triumphs in 
his pain : others, seeing that he may be injured 
with impunity, will be encouraged to treat him 
with similar contempt, and thenceforward he 
will be in continual danger of new invasions of 
his rights. His resentment is excited by the pre- 
sent wrong* and heightened by apprehension of 
those which it is calculated to bring in its train. 
Besides redress of the injury, besides being re- 
placed in the same situation in which he stood 
before the wrong was committed, he seeks to 
destroy the triumph of his adversary, and to teach 
him and others that he is not to be injured with 
impunity. Should a spectator be present, he wall 
be disgusted with the conduct of the offender, 
and sympathize with all the feelings of the sufferer. 
The sentiment of indignation will be awakened 



334* OF THE ADMINISTRATION' 

in his breast, and he will willingly concur in in- 
flicting such a degree of punishment as may sa- 
tisfy the just resentment of the one party, and 
cause pain, humiliation, and repentance, to the 
other.* 

Notwithstanding the deviations from morality 
introduced by the circumstances of particular na- 
tions, confirmed by ancient custom, or sanctified 
by erroneous associations, we can have no better 
criterion of the propriety of any of the senti- 
ments of man, than the general and uniform opi- 
nion pronounced by an immense majority of the 
species, at all times and in every condition of so- 
ciety. Our enquiry is not into what might be 
approved of by a being differently constituted, but 
into what is felt to be just by man ; and, apply- 
ing to this criterion, we must conclude, that re- 
venge, when confined within due limits, is enti- 
tled to approbation. Its reflected image, indig- 
nation, could never find room in our breasts, if 
the resentment of injury, in place of exciting 
our sympathy, appeared to us improper, or in the 
slightest degree reprehensible. When we saw a 
wrong committed, or read of it in history, we 
should participate in none of the feelings of the 
sufferers, The crimes of an Augustus, or a Nero, 
the proscriptions of the one, and the parricide of 
the other, might occasion commiseration or re- 
gret, but could never excite that lively indigna- 

* Prel. Enquiry, Chap. I. Section II. 



OF CRIMINAL LAW. 335 

tiott with which the recital swells our bosoms, 
and almost convulses our frames : we should ex- 
perience none of that generous ardour, which 
in imagination punishes oppressors, and hurls 
usurpers from their blood-stained thrones : we 
should know nothing of that tumult of delight 
which rushes on our hearts, when we learn 
that a merciless tyrant has expiated his guilt. 
Did we consider all resentment as unjust, we 
could have no fellow-feeling either with it, or 
with those objects which it pursues. When we 
thought of punishment, our sympathies would all 
be on the side of the offender ; we should feel 
only for the pain to which he was exposed from 
the resentment of him whom he had wronged, 
and our minds, in place of being swelled with 
indignation, would be shaken with fear, or melt- 
ed with compassion. But this surely is not a 
description of the mind of man. He enters fully 
into a just desire of revenge, he grieves at its dis- 
appointment, and exults in its final accomplish- 
ment ; and no stronger proof can be given of 
the justice, in his estimation, of that sentiment 
with which he so fully sympathizes. 

Neither is our indignation, any more than the 
resentment of the sufferer, satisfied with the mi- 
sery of the criminal, unless it appear to him and 
to the world to be the consequence of his guilt. 
We desire that, feeling it to be the immediate 
result of his own behaviour, he should thence be 
led to humility and repentance. We do not 



336 OF THE ADMINISTRATION 

think that the dignity of the person injured cafr 
be restored, or his character vindicated, unless 
he shows what we denominate a due sense of the 
wrong which he has suffered. The sentiments of 
him who is void of resentment bear no sort of 
affinity to ours : we treat his forbearance with 
contempt, and, stigmatising him as mean-spirit- 
ed, we think him almost deserving of those in- 
sults to which he has so tamely submitted. Nor 
do we respect a man who feels little indignation 
at the wrongs done to others ; but attribute his 
coldness, to insensibility* respecting the happiness 
of his fellow-creatures, to a disregard of moral 
distinctions, or to the consciousness of similar 
crimes : while, on the other hand, nothing ap- 
pears more graceful than an indignation at vice, 
at once open, ardent, and just ; nor can there 
be any better or more dignified safeguard of 
virtue. 

If any further proof were requisite of the uni- 
versal sentiment by which indignation and re- 
venge, in proper measure, are approved, it 
might be drawn from those impressions, which, 
independently of revelation, have very generally 
supported the belief in a future state of retribu- 
tion. In the present world, we so often behold 
the sufferings of virtue, and the triumphs of vice, 
that happiness seems distributed by a rule very 
different from that of desert. To correct this irre- 
gularity, to do justice to all, and to execute our 
awards of happiness to virtue and misery to vice* 

6 



OF CRIMINAL LAW. 337 

•we believe that a future tribunal will be institu- 
ted, where, without favour, error, or weakness, 
every man will be punished or rewarded accord- 
ing to his actions. This conviction is grounded 
as much on the necessity of a hell as on that of 
a heaven, to reconcile the current of human af- 
fairs to those principles of justice which are im- 
planted in our breasts : he who sets before us a 
lively representation of successful villany, betray- 
ing confidence or trampling upon weakness, pro- 
duces a stronger conviction of future judgment, 
than if, with colours equally brilliant, and a more 
delicate pencil, he should paint the unmerited 
sufferings of patient virtue. 

Yet future punishments cannot be considered 
as meant to reform the criminal ; for, in almost 
every religion, the future state of each person is 
conceived to be irrevocably fixed at his departure 
from this w T orld, and such reformation, were it 
the sole end of punishment, might be opera- 
ted at once by the fiat of almighty power. Nor 
can the pains suffered by the dead serve as ex- 
amples to the living, by whom they are altoge- 
ther unseen. Retribution is therefore regarded 
as just, only because it is in conformity to the 
resentment of the injured and the general indig- 
nation of mankind. Roused by the commission 
of some flagrant crime, and disappointed of that 
punishment which we were anxious to inflict, we 
follow the criminal beyond the grave, and in idea 
wreak upon him that vengeance which no power 
can repel, no cunning can avert. 

vol. r. y 



338 OF THE ADMINISTRATION 

The unwillingness to acknowledge resentment 
as the great foundation of the right of punish- 
ment, seems to arise from that passion being most 
frequently in excess. Whenever the thirst of 
vengeance goes beyond the sympathetic indigna- 
tion of the spectator (and it is rarely indeed 
confined within such narrow limits) no senti- 
ment can meet with more decided blame. Its 
immediate tendency being to inflict a degree of 
pain which appears unmerited, we are alarmed at 
the danger of the other party, our indignation is 
transferred to him who seeks, under the name 
of retribution, to commit a new delinquency, 
and our horror at the punishment obscures our 
disapprobation of the crime. But when the in- 
jured party demands no greater humiliation of his 
adversary than what the indignation of spectators 
would incline them to inflict, this degree of ven- 
geance will be approved of, and this degree of 
punishment, without any reference either to the 
reformation of the criminal, or the effect of ex- 
ample upon others, will universally be regarded 
as the award of justice. 

It is true that there is a certain repugnance in 
human nature to inflict even those punishments 
which are moderate and just. Our sympathies, like 
all our other sentiments, are diminished by dis- 
tance of time and place ; we do not feel the same 
indignation at a crime committed many centuries 
ago, and in a distant corner of the world, that 
would be excited by the same offence in our own 



OF CRIMINAL LAW. 339 

times and our own neighbourhood. The circum- 
stances are not so strongly presented to our view, 
or brought so much home to our bosoms.* We 
must frequently recall the action to our minds, 
we must dwell upon its circumstances and its ef- 
fects, we must restore the brilliancy of its origi- 
nal colours, before it can make its full impres- 
sion on our hearts. Hence, some recollection 
is requisite to carry us forward in the infliction 
even of merited punishment. The sufferings of 
the criminal are before our eyes, those of him 
whom he injured are distant, and in some mea- 
sure forgotten. It is here that we must call ge- 
neral rules to the assistance of our immediate 
feelings. We must recollect our sentiments at 
the time when the crime and the punishment 
were viewed from equal distances ; for it was 
only at such a time that we could be consider- 
ed impartial arbiters, and that our feelings could 
be in perfect unison with the dictates of justice. 
Those, therefore, who, painting a most severe 
punishment, ask, whether, from views of fitness 
and desert, we could subject a fellow-creature to 
such calamities, state the question most unfairly. 
The punishments which they usually describe 
are too severe for any crime, and they are pre- 
sented to us without any picture of the atro- 
cities by which they might be merited. Were 
the crime and its punishment brought equally 

* Prel. Enquiries, Chap. I. Sec. III. 



340 OF THE ADMINISTRATION 

forward, and impressed with equal eloquence on 
our minds, then might we determine, from the 
sentiments implanted by nature in our breasts, 
whether the one were justly proportioned to the 
other. Should we reverse the picture, and, throw- 
ing into shade the pain which awaited the crimi- 
nal, exhibit, under the most aggravated circum- 
stances, the atrocity of the offence, we might 
raise up so strong a sentiment of indignation, 
that all punishments, for the moment, would seem 
inadequate to the crime.* 

Objections have been drawn from the doctrine 
of philosophical necessity against the justice of 
punishment, in any view but that of public utility^ 
Man, it has been said, is impelled by motives to- 
tally independent of himself, and which he has 
no power to resist. He is prepared to act in a 
certain manner by a long train of circumstances,, 
over which he has no control, and his determina- 
tion follows as certainly from the predisposing 
causes, as his action follows from the determina- 
tion of his will. Desert is, therefore, a chimerical 
property. We ought to feel no more exultation 
in conferring happiness, than in seeing it confer- 
red by another ; no more remorse for our own 
crimes, than for those of our neighbour ; no more 
regret for evils occasioned by ourselves, than for 
the devastations of a volcano. Neither ought we 

* This effect was produced in a remarkable manner by Mr 
Burke's eloquence in the picture he drew of the atrocities 
committed by Devy Sing. 



OF CRIMINAL LAW. 341 

to feel gratitude for favours which our friend 
could not possibly withhold, or the slightest re- 
sentment of injuries from which our adversary 
had no power to abstain.* 

To state such opinions is sufficiently to refute 
them ; for what is inconsistent with the feelings 
of every man upon earth must surely be a false 
representation of human nature. It may be very 
true, that our volitions are determined by motives, 
and that the strength with which each particular 
motive operates on our minds, is determined by 
many habits, and associations, arising from cir- 
cumstances almost unnoticed at the time, and lit- 
tle subject to our guidance or control. But it is 
equally true, that we are so constituted as to feel 
gratitude for kindness, and resentment of inju- 
ries ; that these sentiments are inseparable from 
our nature ; and that they are not only daily ex- 
perienced in ourselves, but approved of and ap- 
plauded in others. To men so constituted, me- 
rit and demerit will ever appear attached to hu- 
man actions. The chain of causes operating up- 
on the will is usually so lost in obscurity, that 
all attempts to retrace it with accuracy must 
prove abortive ; but the consequences of actions 
are sufficiently obvious, and the sentiments which 
they excite are determinate and energetic. When 
benefits are conferred, or injuries sustained, gra- 

* Godwin's Enq. concerning Political Justice, Book IV. 
Chap. VIII. and Book VII. Chap. I. 



342 OF THE ADMINISTRATION 

ti tude, or resentment, arise in our minds, with a 
force as irresistible as that by which motives in- 
fluence the will ; and the essence of those senti- 
ments is the desire of rewarding, or of punishing, 
the agent. Whether there be what might be 
termed absolute desert, or whether man, if ca- 
pable of comprehending at one glance the in- 
finite progression of moral and physical causes, 
might continue to judge of merit and demerit as 
he does at present, is a consideration totally fo- 
reign to our enquiries. It is enough that no in- 
dividual has ever existed, to whom, in real life 
(whatever may be said to support a favourite 
theory,) the ideas of merit, justice, and retribu- 
tion, did not seem essential parts of human na- 
ture. 

Another argument, equally inconclusive, has 
been drawn from the uncertainty of evidence, 
and more particularly of that, which can be 
brought of the intentions of a criminal. Even 
in ascertaining the most indifferent fact, there is 
room for many mistakes, all of which are more 
apt to occur when the spectators are alarmed by 
danger, or excited to indignation. The witnesses 
may be under the influence of malice, or they 
may be deceived by resemblance, or they may 
establish a chain of circumstances, which, though 
apparently conclusive of guilt, have been in some 
extraordinary manner combined against the in- 
nocent. Nor is it enough barely to ascertain the 
fact 5 for the merit or demerit of the action de- 



OF CRIMINAL LAW. 34 S 

pends on the intention of the agent. How then 
^hall we lay open his mind ? How ascertain the 
motives by which he was actuated ? How con- 
vince ourselves so completely of the justice of 
our indignation, as to proceed, in consequence of 
this conviction, to inflict pain on a fellow-crea- 
ture ?* 

This argument, if admitted, would not only be 
fatal to the infliction of punishment, but to every 
species of human exertion. There is no transac- 
tion of his life, in which it is impossible that a 
man maybe misled by the information on which 
he proceeds, so as to occasion mischief, even 
when he is most anxious to confer happiness. 
But if he has made every prudent enquiry, it surely 
is not his duty to remain inactive, because, after 
all, it is possible that he may be deceived ; nor, 
if he has fairly investigated that evidence which 
it was in his power to obtain, ought he to be 
blamed for mistakes which, in his circumstances, 
no ordinary caution could avoid. Should we see 
one man attack and beat another, we would at 
once feel an indignation sufficient to justify our 
interference, for the purpose of restraining what 
might very probably be unprovoked aggression : 
should we afterwards learn that there was proper 
cause for resentment, we may even be induced to 
assist in the punishment , we may at last disco^ 

* Godwin's Enq. concerning Political Justice, Book VII. 
Chap. IV. 



344 OP TH£ ADMINISTRATION: 

ver that we had been misled by false assertions, 
and in that case our indignation will be redou- 
bled against him who had imposed upon us. 
In all these changes of sentiment, though our 
actions may have been rash, our sympathies, be- 
ing excited by what we believed to be the real 
state of the transaction, were perfectly just. The 
uncertainty of evidence ought to teach us cau- 
tious and patient investigation ; but the possibi- 
lity of error, or even the occasional occurrence 
of mistake, however much to be deplored, nei- 
ther can, nor ought to, overbalance in our minds 
a conviction arising from deliberate enquiry. 

Joined to the indignation, which is a sympa- 
thy with the resentment of the actual sufferer, 
there is also a sympathy with the alarm to which 
the neighbourhood is exposed by the commission 
of a crime. It is proved, by the best of all evi- 
dence, that the culprit is governed by motives 
which threaten the happiness of every person 
around him, whenever it may stand in competi- 
tion with his selfish gratifications. The general 
sense of security is accordingly diminished ; eve- 
Ay one feels that he holds his property, .or per- 
haps his life, on a frailer tenure ; and this uneasy 
reflexion diminishes his happiness, and justifies 
some degree of resentment in his mind. 

The sympathy with this alarm, however, though 
it ought not to be overlooked, is comparatively 
weak. We never forget that dreaded injuries 
may never be committed, and that the alarm ex* 



OF CRIMINAL LAW. 345 

cited by a crime, however lively and painful at 
first, will soon be obscured by ordinary pur- 
suits, and altogether obliterated by time. The 
immediate neighbours, from their own feelings of 
insecurity, might for a moment be inclined to 
carry the punishment as far as would satisfy evert 
the excessive vengeance of the injured party ; but 
as their alarm subsides, the circumstances make 
nearly the same impression on them, as on those 
who are removed from every kind of danger. 
Still, the alarm of the neighbourhood seems to 
require atonement ; but unless the offence be of 
a nature very detrimental to the public peace, 
and at the same time little injurious to the person 
immediately affected, (a description of offence 
which obviously is of rare occurrence) the degree 
of punishment justified by such an alarm is incon- 
siderable, when compared to the vengeance which 
he who has suffered in his person, his property, or 
his character, has a right to exact. 

That degree of resentment, then, which all 
mankind acknowledge to be just, or rather the 
indignation excited by crimes in the breast of im- 
partial spectators, is the great original foundation 
of the right of punishment, and furnishes the 
standard by which its just degree may, in every 
case, be ascertained. In a rude age, the private 
vengeance of the injured party would meet with 
countenance and support from his neighbours, in 
as far as was consonant with their sympathetic 
sentiment of indignation 5 that is, in as far as was 



34fi OF THE ADMINISTRATION 

agreeable to justice. But, in more improved so- 
ciety, the infliction of punishment passes from in- 
dividuals to the state ; public tranquillity is thus 
preserved, and, while inordinate revenge is re- 
pressed, a more regular and certain dispensation 
of justice is secured.* The right possessed by 
the state, however, is neither different in kind 
nor in degree, from that which was formerly vest- 
ed in individuals. Its exercise is transferred, 
but its nature remains unchanged. The proper 
degree of punishment must still be determined 
by the same criterion, the sentiment of indigna- 
tion excited in the breast of the impartial specta- 
tor. If it fall short of this, the private sufferer is 
not sufficiently avenged ; if it exceed, and this 
is by far the most usual error, it no longer has 
any foundation injustice. 



III. Of Punishment from Views of Public Utility. 

General security being, one of the chief origi- 
nal objects of social combination, to prevent in- 
juries, and to guard the weak from the oppression 
of the strong, are among the most important du- 
ties of government. From the difficulty, how- 
ever, of foreseeing premeditated attacks, it is, in 
most cases, impossible to prevent them. Go- 
vernment must be unable to penetrate the inten- 

* Book I. Chap. I. Sec. V. 



OF CRIMINAL LAW. 347 

tions of individuals, so as to counteract their evil 
propensities, or take adequate precautions against 
the commission of crimes. Previous to actions, 
there may be suspicion of evil designs, but too 
vague and unsupported to justify restraint. How 
then is government to execute the important du- 
ty of protecting the citizens ? How is it to operate 
on the determinations of the will, and to counter- 
act the passions which impel men to wickedness ? 
Unable to exercise direct influence over the de- 
sires and aversions already existing in the mind, 
it must proceed farther, and, by the threat of pu- 
nishment, add a new motive sufficient to check 
such irregular passions as might ultimately lead 
to crimes. Experience sufficiently informs us 
that an action is resolved upon, or avoided, ac- 
cording to the comparative strength of the oppo- 
site motives influencing the will, and that few 
considerations have equal weight in this deter-, 
mination with views of personal advantage. Here 
we discover a mode, in which those vicious incli- 
nations that cannot be expelled may be awed in- 
to submission. If we can convince the wicked 
that such a degree of pain will infallibly be the 
consequence of their offences, as must in their 
minds overbalance every advantage accruing 
from injustice, self-love will certainly induce 
them to abstain. We cannot enter into the 
breast of the individual, to observe the irregula- 
rity of his passions, and to apply a check adapt- 
ed to his particular case, but we can prove to all 



348 OF THE ADMINISTRATION 

the citizens that pain and wretchedness, in con- 
sequence of a regular administration of justice, 
must be the invariable concomitants of guilt 
We can impress upon the man of inordinate re- 
venge, that, unless he restrain his passions, a 
greater evil, than that which now convulses him 
with rage, will infallibly overtake him : we can 
prove to the covetous, that, if, by force or fraud, 
he enrich himself at the expence of others, a pe- 
nalty will be inflicted, much more than equiva- 
lent to any advantage which he can hope togain* 
Of all ways of enforcing such considerations on 
the mind, example is the most powerful : it re- 
presents in the person of another, what we know, 
in like circumstances, must befal ourselves ; and 
associates, in the firmest manner, the ideas of pu- 
nishment and of crime. When, therefore, guilt 
has been incurred, government inflicts a public 
penalty, that others, by the example set before 
them, may be deterred from the commission of 
similar excesses. 

This view of the origin of punishment occurs 
so readily in civilized society, and is so corrobo- 
rated by that publicity and solemnity, with which 
penalties are inflicted, that it has been concei- 
ved to be the sole foundation of the right. The 
natural resentment of the sufferer, the indigna- 
tion of mankind, the demerit of the criminal, 
have all been disregarded, and example alone, 
the effect which punishment is likely to have in 
discouraging future aggression, has been consi- 



OF CRIMINAL LAW. 34$ 

dered by many philosophers of the highest emi- 
nence,* as the only justification of the commu- 
nity in inflicting pain even on the most profli- 
gate of its members. In conformity with this 
view, the conceived good of society has frequent- 
ly superseded all ideas of justice, and penalties 
have been decreed, not according to the senti- 
ments of mankind, but according to the fre- 
quency of the crime, the ease with which it may 
be committed, the difficulty of its detection, 
and other circumstances totally unconnected 
with its real turpitude. Such considerations, 
however, afford a very false rule for the appli- 
cation of punishment. The moment we de- 
part from the criterion of justice furnished by 
the natural and universal sentiments of mankind, 
we no longer have any known or determinate 
standard ; we shall be guided by our fears, by 
our speculations, or, what is worst of all, by the 
exclusive interests of those ranks which are 
above temptation to the crime, and most like- 
ly to be injured by its prevalence : statute will 
be added to statute, punishment raised upon pu- 
nishment, till at last our criminal law will be- 
come the disgrace of humanity. Abundant in- 
stances of this progress of cruelty may be found 
in the blood-stained codes of modern Europe; 
and although almost every successive year has 

* Beccaria, Montesquieu, Voltaire, Blackstone, Bentham, 
Romilly, and many others. 



550 OF THE ADMINISTRATION 

been marked by some addition to that ample list 
of offences which are exposed to the highest 
vengeance of the law, the disproportion of pu- 
nishments to crimes has long been remarked 
and deplored by every humane and enlightened 
mind. " It is a melancholy truth," says Sir 
William Blackstone, " that among the variety of 
f< actions which men are daily liable to commit, 
" no less than one hundred and sixty have been 
" declared by act of parliament to be felonies 
tc without benefit of clergy/'* 

The proper province of views of public utility 
is widely different from that which is frequently 
assigned to them. It is not to ascertain the pro- 
per degree of punishment, but to render its in- 
fliction more regular, and more adapted to strike 
the imagination of spectators. When a crime 
is in some measure forgotten, and its punish- 
ment is present to our senses, we are apt to lose 
our indignation in pity for the criminal, and to 
pardon that offence which is but obscurely re- 
membered. The recollection of the sentiments 
which the injury, when received, would have ex- 
cited in our minds, may often prove a weak anta- 
gonist to our immediate feelings of commisera- 
tion ; but reflection on the danger to society, 
and on the necessity of overawing the profligate 



* Commentaries, Book IV. Chap. I. Since the time of 
Sir William Blackstone the list has been considerably in- 
creased. 



OF CRIMINAL LAW. 351 

by example, makes us proceed in the punish- 
ment, and thus produces that regularity in the 
distribution of justice which the weaknesses of 
human nature tend constantly to disturb. Views 
of utility ought also to influence the choice of 
the particular mode of coercion ; for, if the de- 
gree be consonant to justice, and consequently 
the criminal has no cause of complaint, society 
has an undoubted right to consult the general 
good, and by the public and impressive manner 
in which the just degree of coercion is applied, 
to impress the minds of the citizens with a hor- 
ror for guilt, and a salutary dread of the laws. 

Beyond this, it is difficult to conceive how 
any regard to general utility can be reconciled 
to justice. To occasion positive evil to one, that 
eventual good may ensue to others, seems to ex- 
ceed all sound ideas of the rights of government. 
It is the majority consulting their own interests 
at the expense of the minority, and can be de- 
fended on no principle but that of superior power. 
If, without any reference to the deserts of the 
criminal, we punish him merely for the sake of 
example, we might, with equal propriety, inflict 
pain on one who is innocent, whenever, by so 
doing, we expected to promote the general ad- 
vantage. But while we applaud the punishment 
of the guilty, our minds w T ould revolt from that of 
the innocent, however conducive it might be to 
the happiness of millions. There must, therefore, 
be some difference between the two cases \ we 



352 OF THE ADMINISTRATION 

must intend something more than the public 
good, when we punish a crime ; there must be 
something connecting in our minds the penalty 
with the offence, independently of that benefL 
to society, which, in particular circumstances, 
may possibly be promoted by injustice. This 
feeling, which so clearly discriminates between 
the cases of the guilty and the innocent, can be 
nothing but indignation. In the one case, we 
say, that the pain is merited, and feel a satisfac- 
tion in its having overtaken the offence ; in the 
other, if we are compelled by necessity to inflict 
it, we feel ourselves entitled rather to the indul- 
gence, than to the approbation, of our fellow- 
creatures. If there be no other mode of stopping 
the progress of a pestilence, we may put to death 
those, who, being infected, have little chance for 
either life or enjoyment ; the crew of a ship, for 
self-preservation, have been known to cast lots 
and devour some of their companions : But in 
what a different light do we view these, perhaps 
unavoidable injuries, from the infliction of pu- 
nishment ? Is it conceivable that they can rest 
on the same principle, the sacrifice of one to the 
good of many ? 

The instant we depart from the plain undevia- 
ting course of retributive justice, and award pu- 
nishments merely for the sake of example, or in- 
crease the severity of law from speculations re- 
specting public expediency, that moment the 
distinction between guilt and innocence is at an 



OF CRIMINAL LAW. 353 

end, and we must view the legal penalties, not 
as justly attached to the commission of crimes, 
but as the means of producing advantage to man}', 
at the expense of a few. Our natural feelings 
are completely set aside, and we shall probably 
find in the end, that even those expectations of 
public benefit, on which we rely for the excuse 
(it cannot be called the justification) of severity, 
will be altogether disappointed. 

1st. If the laws be too severe, it is in vain to 
expect them to be regularly enforced. 

Even he who is aggrieved will frequently sub- 
mit to injury rather than seek redress by an act 
of injustice. His natural feelings of humanity 
will prevent him from demanding vengeance 
disproportioned to the offence, and will even 
render him regardless of those considerations of 
public good, which, if they coincided with hia 
other sentiments, might urge him, for the sake 
of example, to reject all solicitations for forgive- 
ness. Should what he conceives to be his duty 
to his fellow-citizens overcome his reluctance, 
and in an aggravated case induce him to prose- 
cute the offender, he will proceed with that lan- 
guor which usually attends an action proceeding, 
not from private interest or passion, but merely 
from general expectations of public advantage. 
Many offences will, therefore, be concealed, and 
the prosecution of others will depend on a prin- 
ciple of our nature at best languid in its opera- 
tions, liable to be counteracted by indolence 
vol. i. z 



3o4 OF THE ADMINISTRATION 

or private solicitation, and altogether impotent 
when set in opposition to the best sentiments of 
the heart. Information may be given at Bow- 
street, but no further exertions will be used to 
bring the offender to what is falsely denomina- 
ted justice. 

If such be the effects of excessive severity on 
the sufferer, whose resentment is less likely to be 
combated by humanity, we must expect all spec- 
tators, and others who have no personal interest 
In the detection of the crime, to connive at the 
escape of the offender. While their indignation 
at the guilt is lost in their fears for the safety of 
the criminal* it is in vain to expect that they 
should refrain from throwing such obstacles, as 
may not subject themselves to punishment, in 
the way of his pursuers ; far less will they give 
any effectual assistance to secure him that he 
may answer for his crimes. In this way, many 
offences deserving of punishment, but not of that 
punishment awarded by the law, are sunk in 
oblivion, without any active enquiry being made 
after their perpetrators. 

Even when a culprit is brought to trial, the 
same considerations will soften the evidence, and 
induce the witnesses to give to eveiy circum- 
stance that colour which may be most favour- 
able to the prisoner. If all this be unavailing, 
and the fact be established by incontrovertible 
proof, still the humanity of the jury, by what has 

6 



of Criminal law. 355 

been called " a kind of pious perjury," * will fre-> 
quently dictate a verdict of acquittal, or at least 
find some circumstance, unsupported by the evi- 
dence, or even directly contradicted by it, which 
may mitigate the legal penalty, f After all, hopes 
of pardon may be founded on the hardship of the 
case, and the natural commiseration of mankind. 

How many probabilities of escape are thus ac- 
cumulated by the unjust severity of law ? The 
whole of the spectators by whom he might be 
apprehended, the witnesses, the jury, even the 
injured party, are interested by the situation of 
the culprit, and most anxious for his acquittal : 
he has many chances of escaping prosecution, 
some of escaping conviction, and others of find- 
ing the penalties of the law ultimately mitigated 
or remitted. 

But the certainty of punishment is a much su* 
rer prevention of crimes than its severity. The 
penalty dictated by the natural feelings of man- 
kind, if regularly inflicted, being always suffici- 
ent to overbalance any advantage which might 
be derived from crimes, would consequently be 
sufficient to deter from the commission of inju* 
ries. Headstrong passions might occasionally 
disregard all calculations of personal interests, 
and hurry their victim into guilt ; but we shall 

* Blackstone's Comra. Book IV. Chap. XVII. 

j- Some curious instances of this are adduced by Sir Sa- 
muel Romilly in his Observations on the Criminal Law of Eng- 
land, Note A. 



356 OF THE ADMINISTRATION 

in vain attempt to withstand their impetuosity, by 
refinements in cruelty^ which tend to foster those 
hopes of impunity, and that confidence in good 
fortune, the seeds of which are implanted in the 
human heart. To what purpose hold out san- 
guinary examples of public vengeance, while ex- 
perience evinces the many probabilities of esca- 
ping every punishment ? Each person, flattering 
Jiimself that his is the lucky number in the lot- 
tery, will reckon, with what appears to him al- 
most certainty, that it will not be his turn to suf- 
fer, while others are unpunished. Every escape, 
in place of awakening him to a just reflection on 
the danger he had incurred, will strengthen his 
confidence in fortune, and plunge him deeper 
into guilt. If example is to deter from crime, 
it must be by counteracting this self-deception, 
and proving that the chance of impunity is chi- 
merical. But so long as excessive penalties are 
attached to slight transgressions, and all the best 
feelings of humanity are set in array for the pro- 
tection of the guilty, the law, in place of deter- 
ring, may be considered as, by its severity, en- 
couraging to crimes.* 

2dly. Very severe punishments, far from pro- 
ducing the reformation of the criminal, annihi- 
late any sense of duty which he may yet retain. 

He who has committed a slight transgression, 

* See Sir Samuel Romilly's Observations on the Criminal 
Law of England. I do not quote, for every sentence of that 
excellent treatise is deserving of most serious consideration. 



OF CRIMINAL LAW. 357 

will naturally compare the sentence of his own 
conscience with the enactment of the law ; and, 
perceiving such a striking disparity in their re- 
spective awards, it is no wonder that he should 
place the criminality less in the act, than in its 
detection. A thief who has stolen some trifle, 
the privation of which the owner can scarcely 
feel, knows that he is exposed to suffer death, but 
is conscious of no guilt meriting so severe a doom. 
He is apt to overlook a degree of remorse, slight 
when compared to the penalties attached to his 
offence, and to consider the punishment of theft, 
not as the proper consequence of his crime, but 
as a certain risk attached to his profession. While 
he can avoid discovery, he looks upon his trade 
as prosperous, and his plunder as the fair reward 
of dexterity, industry, and enterprise : when 
he is detected, he considers himself as unfortu- 
nate, rather than criminal. Losing those feel- 
ings of remorse which, by a just scale of punish* 
ment, might have been strengthened, in place of 
being eradicated, he forgets all distinctions be- 
tween actions which are equally obnoxious to 
the law, and comes at last to commit atrocities 
from which he would otherwise have shrunk. 
Had he found a farther penalty attached to every 
new transgression, he might have been led to 
some reflection on his crimes, and a punishment, 
which accorded with the sentence of his own 
conscience, might have roused his remaining 
sense of virtue, and checked him in his career. 



358 OF THE ADMINISTRATION 

While we thus destroy all remaining virtue in 
the criminal, we also free him from that fear of 
further punishment which might have been some 
protection against the most atrocious offences. 
When we neglect the real demerit of crimes, and 
attend only to their effects on society, we soon 
arrive at the highest penalty which man, without 
altogether discarding every sentiment of huma- 
nity, can be induced to inflict, To those who 
think their personal interests or security in dan- 
ger, no precautions appear too great. They ea- 
sily represent to themselves the inconvenience 
of being robbed of their wealth, of being injured 
in their persons or characters, of having their en- 
joymepts rendered insecure. They do not, with 
equal facility, enter into the feelings of those who 
may be tempted by avarice, by want, by rage, or 
by example, to infringe the precepts of justice. 
Were a particular case to be laid before them, 
they would be sensible that to the crime there 
was an appropriate degree of punishment; but, ta- 
king a general and indistinct view, they are struck 
with the danger to which they themselves are 
exposed, and with the obvious and important in- 
terests of society ; and, averting their minds from 
any impressive picture of the pain to which 
they doom a fellow-creature, they vainly hope 
to extirpate guilt by denouncing the most se- 
vere punishments. Thus death, which ought to 
be reserved for the most atrocious injuries, be- 
comes the legal punishment of very slight offea- 



CRIMINAL LAW, 359 

ces, and after the first lapse from virtue, there 
is no new terror remaining as a protection from 
the most daring crimes. He who has already in- 
curred the highest vengeance of the law, will 
seldom refrain from committing murder, if by so 
doing he can hope to escape detection. The in- 
justice of the criminal code has at once con- 
founded his ideas of moral rectitude, and freed 
him from all further restraints of fear ; it has 
blunted the stings of remorse, and exhausted the 
terrors of punishment. But if there were de- 
grees in punishment, there might also be degrees 
in guilt, and the first transgression, proceeding 
perhaps from some casual incitement, would not 
lead so certainly to total profligacy and the most 
audacious crimes.* 

* " Where men see no distinction made in the nature and 
*f gradation of punishment, the generality will be led to con- 
" elude, there is no distinction in the guilt. Thus in France, 
** punishment of robbery, either with or without murder, is the 
44 same : hence it is, that, though perhaps they are, therefore, sub- 
•' ject to fewer robberies, yet they never rob but they also mur- 
f ' der. In China, murderers are cut to pieces, and robbers not ; 
* l hence in that country, they never murder on the highway, 
" though they often rob. And in England, besides the addi- 
" tional terrors of a speedy execution, and a subsequent ex- 
" posure, or dissection, robbers have a hope of transportation, 
" which seldom is extended to murderers. This has the same 
" effect here as in China, in preventing frequent assassination 
44 and slaughter." — Black. Comm. Book IK Chap. L 

If there be any truth in this representation, how great might 
be the effect of a just gradation of punishment, in stopping 
the transition from small offences to aggravated crimes ? 



360 OF THE ADMINISTRATION 

3dly. We shall find reason still further to re- 
probate excessive punishment, if we attend to its 
effects on the general morals of the nation. 

When the indignation of spectators accords 
with the degree of coercion, however much they 
may pity the sufferings of the criminal, they 
never cease to detest the crime, and to desire 
that it should be fully expiated. Guilt becomes 
firmly associated in their minds with pain and 
disgrace, one or both of which is considered as 
its just and inseparable concomitant. Thus, the 
abhorrence of vice is strengthened, and the people 
become practically convinced that guilt is as de- 
structive of happiness, as it is odious in itself; and 
degrading to the character of the offender. But 
in sanguinary executions for slight transgressions, 
the demerit of the criminal is lost in our horror 
for his punishment ; our sympathies are fully ex- 
cited by his unhappy situation ; we feel that he 
is unjustly dealt with ; we forget his crimes, com- 
miserate his sufferings, and reserve the whole of 
our indignation for the atrocity of the law. One 
of the chief purposes of public example, the in- 
crease of the natural odiousness of vice, is thus 
entirely counteracted. 

Custom at last reconciles those, who are fre- 
quently present at such scenes, to the most san- 
guinary punishments. They lose part of that 
horror which unmerited suffering is fitted to ex- 
rite j and, in order to have their sympathies 






OF CRIMINAL LAW. S6l 

awakened, crowd to the scaffold as to any other 
place of public amusement. No longer thinking 
of the crime that is to be expiated, they bestow 
their whole attention on the behaviour of the 
victim. He becomes the object of their warmest 
sympathy, and, if he behave with intrepidity, of 
their highest respect and admiration. Where is 
now the advantage of example ? Where the de- 
testation of vice ? It is all lost in a theatrical re- 
presentation, in which the interests of virtue, 
except in as far as the admiration of fortitude 
may be inculcated, are entirely neglected. The 
spectators, without enquiring into the nature of 
the crime, think of nothing but the enjoyment 
of the tragic scene. They consider it as a grand 
spectacle exhibited gratis to the people ; they 
enjoy it as the Romans enjoyed their combats of 
gladiators, or the Spaniards their bull-fights j 
they shed some tears at the catastrophe, and cri- 
ticise the performances of the several actors. 
This abuse arises altogether from the frequency 
of severe and sanguinary punishments. Were 
they less frequent, they would produce a more 
durable impression on the mind ; were they less 
severe, our sympathy with the sufferings of the 
offender would always be accompanied by indig- 
nation at the atrocity of the crime. We accord- 
ingly find, that, when a cool and deliberate mur- 
der is expiated by a public death, the people, in 
place of being melted with pity, in place of wish- 



3t>2 OF THE ADMINISTRATION 

ing that the culprit may escape, or admiring 
what they now consider as the criminal boldness 
with which he meets his fate, show a marked sa- 
tisfaction that so atrocious an offence has been 
followed by the utmost vengeance of the law. 

It is true, indeed, that the great body of the 
people seldom frequent those spectacles of hor- 
ror, and are too much engaged in their private 
affairs to attend to the injustice of that criminal 
code to which, from their infancy, they have 
been accustomed. They are not, however, on 
that account, exempt from the pernicious effects 
of unjust laws. Never enquiring how far these 
laws are defective, they come to rank offences, 
not according to their inherent guilt, not accord- 
ing to those rules of eternal justice implanted 
by nature in the heart of man, but according to 
the capricious enactments of the legislature. See- 
ing no distinction in the punishment of several 
crimes, they are apt to conclude, that there is no 
difference in their guilt ; and being accustomed 
to estimate demerit by a standard widely differ- 
ent from the dictates of conscience, they are apt 
to conceive, that, where the law has denounced 
no penalty, their behaviour is subject to no re- 
straint. An action is avoided, not because it is 
morally wrong, but because it is legaUy punish- 
able ; another is performed, not because it is 
strictly just, but because a penalty has been an- 
nexed to its omission. The man who would 



OF CRIMINAL LAW. 363 

scorn to steal, will sometimes boast of a success- 
ful fraud ; he who disdains the name of robber, 
will openly fit out ships to plunder the property 
of those who have never offended him ; and he 
who would be struck with horror at an accusa- 
tion of murder, will deliberately engage in a 
trade, of which the torture and death of his fel- 
low-men are the acknowledged results. Actions 
being judged by a criterion altogether different 
from their real merits, the genuine moral feel- 
ings are silenced by pleas of legality, or stifled 
amidst false, though plausible, pretences of the 
public good. 

Where, then, is the boasted utility of punish- 
ments inconsistent with the natural sentiments 
of mankind ? Is it to be found in the impunity 
of crimes, or in the total depravation of the of- 
fenders ? Or must we look for it in the destruc- 
tion of all the beneficial tendencies of example, 
in the perversion of moral sentiment, and the 
total neglect of real and substantial justice ? No : 
here, as in all other cases, the good of all is 
strictly consonant with rendering unto every one 
that which is his due. If we acknowledge this 
great truth, if we admit that only those punish- 
ments are useful which are in conformity to the 
feelings of impartial spectators, that theory, which 
founds the right of punishment on utility, may 
not be hurtful, but it must be altogether super- 
fluous. To what end should we establish as a 



S64f OF THE ADMINISTRATION 

principle that which is itself dependent on other 
considerations ? Why should we not proceed at 
once to the source, and assign, as the true and 
proper measure of criminal law, that retributive 
justice which must ultimately regulate and di- 
rect our speculations respecting the general 
good? 

Let punishments, therefore, be proportioned 
to the indignation excited by crimes, but let 
them be inflicted in the manner best calculated 
to reform the criminals, and to hold out a salu- 
tary warning to the nation. It is only such a 
system of criminal law that can promote the 
public happiness, fortify the innate principles of 
justice, and diminish the frequency and atrocity 
of crimes. 



OF CRIMINAL LAW. S6S 

SECTION II. 

Of the Province of Juries in Criminal Trials* 

The connection between jury-trial and the li- 
berty of the subject is much more obvious in 
criminal, than in civil, causes. It is but rarely 
that the sovereign or judge can be interested in 
the issue of a dispute respecting property ; nor 
would the stirring up of vexatious law-suits, that 
they might afterwards be unjustly decided, be a 
mode of oppression frequently resorted to by 
men in power. An attempt to injure an indivi- 
dual by civil suits would require too much pre- 
paration, and be attended with toomuch hazard 
and delay. Those must be sought out who have 
at least some colourable claims against him, they 
must be encouraged by distinct assurances of 
success, their scruples of conscience must be 
overcome, and, for these purposes, the charac- 
ters, both of the judges and of the sovereign, must 
be unveiled and committed to their honour and 
discretion. When a man obnoxious to the court 
happened to be engaged in a law-suit, a corrupt 
judge might indeed incline the scales in favour 
of his adversary ; but this could seldom occur 
exactly at the time the sovereign or minister 
wished him to be oppressed, and to a degree 



566 OF THE ADMINISTRATION 

that would very materially injure his fortune- 
To ruin an individual by a criminal sentence is a 
matter of much less difficulty. Advantage may 
be taken of some trifling presumption of guilt, 
a single witness may be suborned, or a venial 
trespass may be viewed as an atrocious crime ; and 
by one Unjust decision, an innocent man may be 
deprived of his property, his freedom, his reputa- 
tion, or his life. In civil causes, juries may be 
useful ; but in criminal, they are essential to the 
security of every citizen. 

If, however, the jurors might be punished, at 
the discretion of the court, for rinding a verdict 
contrary to direction, as was the old practice of 
England,* or if they should be confined entirely 
to the examination of the fact, while the law is left 
wholly to the judges, as is said to be the present 
law ; in either of these cases, the institution must 
be ineffectual for the protection of the subject: 
in the first case, the trial by jury must be evi- 
dently useless ; in the second, the check upon the 
judges may be easily eluded. A trivial jest may 
be characterized as a most wicked and scandal- 
ous libel ; a slight stroke may be called a daring 
assault ; the most justifiable homicide may be 
indicted as a felonious murder. Were the jury 
to be confined to the simple finding of the facts 
detailed in the indictment, the whole of the real 
merits of the case, the determination how far 

* Blackstone's Comm. Book IV. Chap. XXVII. 



OF CRIMINAL LAW* 367 

these facts amounted to crime, would be commit- 
ted entirely to the judges. Advantage might 
therefore be taken of some trifling misdemeanour, 
to ruin, through the corruption of the judges, 
any person who was obnoxious to the administra- 
tion. On the other hand, those who were in fa- 
v our, or who, through wealth or connexions* 
could influence the judges, might escape, by 
means of unfair construction of the laws, from 
the due penalties of their crimes ; and, thus, the 
poor might in practice be left unprotected from 
the injuries and oppressions of the rich. If, there- 
fore* the institution of juries be requisite for the 
defence of civil liberty, it seems essential that 
not only the fact, but the application of the law 
to the fact, should be left to their determination. 
After the crime has been ascertained by the 
verdict of the jury, it remains to determine the 
kind and degree of punishment. This may be 
done either by defining the various degrees of 
crime, and annexing to each a specific punish- 
ment; or by leaving the just degree of coercion 
to the decision of those who are acquainted with 
all the circumstances of the individual case. If 
the judges are to determine the punishment, it 
will be requisite to fetter their discretion, as 
much as possible, by positive statute ; some in- 
justice to individuals being a less evil than gene- 
ral uncertainty or arbitrary power;* but if the 

* The English law, in total disregard of this principle, de- 



368 OF THE ADMINISTRATION 

jury were permitted not only to ascertain the 
guilt, but also to determine the extent of the pe- 
nalty, it is probable that no inconvenience, but, 
on the contrary, many advantages, might arise 
from referring the whole case to their award. 

If the natural sentiments of equity will enable 
every man to judge both of his own civil rights, 
and of the claims of others against himseli, much 
more will conscience inform him when he is 
about to commit an actual crime. On this sub- 
ject no person ever had, or ever can have, the 
slightest hesitation, unless, through the influence 
of positive institutions, and the habit of substitu- 
ting legality for justice, his moral feelings are 
depraved. Every one must know, that, by in- 
tentionally injuring another in his property r cha- 
racter, or person, he renders himself the just and 
approved object of vengeance and retribution. 
He must feel that he is followed by the indigna- 
tion of mankind, that he is become detestable in 
his own eyes, and that his conscience never ceases 
to remind him of that eternal rule of punishment 
which is impressed upon his heart. None can 
plead an ignorance, which never did, or can, 
exist, as an excuse or extenuation of his guilt. 
There is therefore no occasion to inform him of 
his duty by penal laws, no necessity, by proclaim- 

Bounces severe punishments, even death, for very trivial of- 
fences ; leaving it to the judge to moderate the penalty ; that 
is, referring the extent of the punishment, which is actually 
to be inflicted, altogether to his discretion. 



OF CRIMINAL LAW. ; 369 

ing the intention of punishing crimes, to warn 
from their commission. Every man being suffi- 
ciently warned by the monitor within his own 
breast, whenever a crime is committed, the right 
of punishing it is complete. 

A terror for what are called ex post facto laws 
can be reasonable, only if actions, in themselves 
innocent, are to be converted into crimes, or pe- 
nalties, greater than those awarded by justice, 
are to be inflicted on offenders. But when the 
punishment is consonant to the universal senti- 
ments of mankind, when it is not more severe 
than the sentence which the criminal, in his own 
mind, passes upon himself, there seems to be 
no occasion for prior denunciations by the law. 
Slander, robbery, assault, murder, are known to 
every one to be crimes deserving of punishment ; 
and no form of legislation can add to this noto- 
riety. They are denounced by a law, universal, 
immutable, eternal ; and the measure of their in- 
herent guilt can neither be increased nor dimi- 
nished by the institutions of man. We have al- 
ready seen that all attempts to aggravate, by po- 
sitive law, the penalties awarded by the indigna- 
tion of mankind, are equally unjust and ineffi- 
cient in the view of repressing crimes. History 
affords fewer instances of improper lenity ; but 
when they do occur, they are no less unjust. 
Where the murderer is saved from the punish- 
ment due to his crime, by a sanctuary, by the 
clerical character, by the indulgence of the law, 

vol. i. SA 



370 OF THE ADMINISTRATION 

or by the inefficiency of the police, the rela- 
tions of the deceased, unless prevented by con- 
siderations of public convenience or of person- 
al risk, might justly resume their original right 
of punishment.* Nor could a positive statute, 
affixing too slight a penalty to an offence, bind 
the community towards the criminal. He can- 
not be absolved from the guilt of his actions 
by any declaration, statute, or compact, but still 
continues liable to the punishment awarded by 
the just sentiments of mankind. In the very 
first case which occurred, the community could 
not adhere to their own regulation, without be- 
ing themselves guilty of injustice. This injus- 
tice indeed they might be induced to commit, 
from a sense of what was due to the consistency 
of their own conduct, or from apprehensions of 
destroying, by an appearance of levity and ca- 
price, the beneficial effects of other and wiser 
laws ; but if, disregarding these considerations, 
they should resolve to proceed according to the 
eternal rules of distributive justice, the criminal 
could have no cause of complaint. He would 
be subjected to no greater penalty than his crime 
deserved, and his expectations of impunity could 
not surely be considered as an alleviation of his 
guilt. 

* Book I. Chap. I. Sec. V. 

This right respecting murder is still acknowledged in the 
Appeal of Felony of the law of England. See Blackstone's 
Comm. Book IV. Chap. XXIII. 



OF CRIMINAL LAW. $Jl 

If, then, no positive institution can alter the 
just relation established by nature between crimes 
and punishments, no promulgation of statutes can 
be requisite for ascertaining the proportion which 
the one ought to bear to the other. The great 
laws of justice are more certainly known, and 
more durably established, than if they were pro- 
claimed by legislators, and engraven on plates 
of adamant* To these unchangeable laws it is 
our duty to conform, and we have only to en- 
quire whether the best abstract of this universal 
code will be formed by general rules applicable 
to a variety of cases, or by submitting all the cir- 
cumstances of each particular transgression to 
the impartial consideration of a jury. 

Criminal, like civil, statutes, looking only to 
the prominent features of actions, must disregard 
all the nicer shades of difference. Indeed the 
difficulties of forming rules, which may apply 
with tolerable accuracy to criminal cases, are 
much greater than those which attach to civil 
regulations. So much depends on a variety of 
collateral circumstances, on the force of the 
temptation, the previous behaviour of both par- 
ties, the intention of the agent, the degree of 
premeditation, the actual extent of the injury, 
and the thousand aggravations or alleviations 
which no words can describe, that to form gene- 
ral rules, which will not in many instances be pal- 
pably unjust, would far exceed the ingenuity of 
man. After all the precision of which language 



372 OF THE ADMINISTRATION 

is capable, much must be left to the jury, or, 
under the name of justice, the most notorious 
wrongs must be committed. Slander extends 
from the foolish unpremeditated tale of a gossip, 
to a deliberate and deep-laid scheme to rob a 
man of his good name, to deprive him of his 
friends, to render him the opprobrium of his re- 
lations, to poison all his enjoyments, and event- 
ually to injure or ruin his fortune. In like man- 
ner, assault, beginning -at a slight stroke given 
partly in frolick and partly in anger, reaches to 
a deliberate conspiracy to maim, or a waylaying 
and attack with the intention of committing 
murder. What language can discriminate all 
the shades of these offences ? Yet, in the code 
of justice there is to each an appropriate punish- 
ment. The law of England has described seven 
or eight gradations between justifiable homi- 
cide and the most aggravated murder.* Its dis- 
tinctions, though the best of which we have ex- 
perience, may not be the most precise that might 
be devised ; but the most fertile imagination 
could not conceive, the most accurate language 
could not define, the most comprehensive memo- 
ry could not retain, those innumerable varieties 
which in this crime actually occur. Of the whole 
scale of punishment, from the gentlest reprimand 
to the most disgraceful death, there is probably 
no degree to which some particular case does not 

* Blackstone's Comra. Book IV. Chap. XIV. 



OF CRIMINAL LAW. $73 

accurately correspond. The statutes respecting 
homicide, if just, must fill volumes, and fully to 
understand them must be the labour of years. 
How then are we to proceed ? Ought we to pro- 
mulgate statutes, which, though in general wise, 
may occasionally be the source of greater inju- 
ries than those which they repress ? Ought we 
not rather to leave the whole issue to the jury, 
who, considering all the peculiar circumstances 
of each case, will give an equitable award ? 

It is at least equally difficult to define the de- 
gree of punishment proper in the various circum- 
stances of the criminals, as to describe the gra- 
dations of their crimes. On a cursory view, no- 
thing appears more equitable, than that the law 
should be equal to all, and consequently, that, 
without reference to the circumstances or situa- 
tion of the person by whom an offence has been 
committed, the punishment should be determi- 
ned by the nature of the crime. By following 
this rule, however, we should establish, not a 
real, but an illusive, equality. Punishment con- 
sists in the actual suffering, whether bodily or 
mental, which is made to follow the commission 
of a crime, not in the mere external act by which 
that suffering is inflicted. It is not the impri- 
sonment, the whipping, the exposure in the pillo- 
ry, but the inconvenience and feeling of restraint, 
the pain, or the disgrace, brought upon the cul- 
prit, which are the due retribution for his guilt. 
The same external act may, from a variety of 



37 4f OF THE ADMINISTRATION 

circumstances, occasion very different degrees of 
pain to different individuals, and may therefore 
be considered as constituting very different de- 
grees of punishment, What would reduce one 
man to despair, might be treated as a trifling in- 
convenience by another. Such varieties may 
arise either from peculiarity in the organization, 
dispositions, and habits of individuals ; or they 
may depend on circumstances affecting entire 
classes of the inhabitants. Individual peculiari- 
ties being scarcely susceptible of proof, attempts 
to appreciate them would inevitably lead to a 
most intricate investigation, to many frauds, and 
to frequent and dangerous impunity. But in as 
far as the differences proceed from external cir- 
cumstances, and as they are common to whole 
classes and descriptions of the citizens, they are 
capable of direct proof, and cannot justly be 
overlooked. Thus, the same degree of bodily 
pain could not be inflicted on a woman or a 
child, as on a robust man, without ruining their 
health, or perhaps occasioning their immediate 
death. Differences of sex and of age, indeed, 
may easily be attended to in criminal statutes, 
but there are other circumstances as important, 
though less capable of definition, which, unless 
the power of modifying punishment be left to 
the discretion either of the judge or of the jury, 
must be altogether overlooked. 

Of these, the rank or situation in life of the 
criminal is the most important. That this should 



OF CRIMINAL LAW. 375 

constantly be attended to, not for the purpose 
of establishing unjust privileges, but in order to 
attain to just equality in criminal law, can scarce- 
ly admit of doubt. The same fine which would 
ruin the poor, and distress the man of moderate 
fortune, could occasion no sensible privation to 
the opulent : the pillory might be despised by 
him whose character was already lost, while it 
would overwhelm with shame, and perhaps de- 
prive of the means of subsistence, the man who 
had formerly held a respectable rank in society : 
whipping will to one be merely a corporal pu- 
nishment, to another, the greatest degradation 
which human ingenuity could invent : a bride^ 
well may afford to one better food and lodging, 
with labour scarcely more severe than that to 
which he is daily accustomed, while to another, 
the mode of living will appear most wretched, 
and that labour to which he is not habituated, 
most oppressive. In all these cases, to inflict 
the same nominal punishment on men whose 
circumstances and situations are so very differ- 
ent, would be extremely unjust. The law, if in 
words it be the same for all, must in reality pu- 
nish one most severely, while it allows another 
almost to escape.* 

* " Les mimes Peines, dit-on,pour les memes Delits. Cet adage 
" a une apparence de justice et d'irapartialite qui a seduit 
" tous les esprits superficiels. Pour lui dormer un sens rai- 
*•' sonnable, il faut determiner auparavaut ce qu'on entend par 
6i memes Peines et memes Delits. Une loi inflexible, une loi 



376 OF THE ADMINISTRATION 

But though the degree of severity of any par- 
ticular punishment may be obviously different 
between two conditions of life very far removed 
from each other, it is extremely difficult to define 
by statute all that diversity of circumstances 
which ought to modify the application of a cri- 
minal code. It is impossible to characterise 
those gradations of rank, education, opinions, 
and general habits, which, gliding imperceptibly 
into each other, mock the discriminating powers 
of language. To overlook them would be un- 
just, to describe them unsatisfactory. The statute 
book might be filled with distinctions, and re- 
finements ; but, after all, recourse must be had to 
the discretionary power of the judge or of a jury. 
Accordingly, in England, the greater number of 
crimes are punished, at the discretion of the judge, 
by fine, imprisonment, or whipping; while in 
Scotland, whenever the punishment is less than 
capital, it is what, in the law of that country, is 
denominated arbitrary. To leave this power, 
however, in the hands of a judge, is to disregard 
all those considerations of public expediency 

" qui n'auroit egard ni au sexe, ni a Page, ni a la fortune, ni 
**■ au rang, ni a Peducation, ni aux prejuges moraux ou reli- 
M gieux des individus, seroit doublement vicieuse, comme in- 
«' efficace ou comme tyrannique. Trop severe pour Pun, trop 
u indulgente pour Pautre, toujours pechant par exces ou par 
" defaut, sous une apparence d'egalite, elle cacheroit Pine- 
" gaiite la plus monstrueuse." — Principes de Legislation par J. 
Bentham, rediges par Dumont, Chap. IX, Sec, III, 



GF CRIMINAL LAW, 37*7 

that recommend the trial by jury : it is to enable 
a corrupt judge to inflict a severe and degrading 
punishment on those who, while obnoxious to 
government, have incurred some slight degree 
of criminality ; and to open a way for the impu- 
nity of the rich or powerful. From the exercise 
of such discretion by a jury, no bad consequences 
could usually be apprehended, and probably no 
other mode could "be devised by which punish- 
ments can be so well proportioned, both to the 
nature of the crime, and to the circumstances of 
the culprit. 

Indeed, the attempt to define the different 
ranks of criminals, and to vary the coercion ac- 
cording to the education, habits, and modes of 
thinking of the several classes of society, would 
not only be nugatory in many cases, but extreme- 
ly liable to abuse. In whatever way the govern- 
ment may be constituted, the higher orders must 
always have the chief influence in framing the 
laws. If this influence be unconnected with any 
special privilege, and those who enact the laws 
be in every respect subjected to their operation, 
there will be little danger of oppressive statutes, 
and the great body of the people, though exclu- 
ded from political power, may enjoy the chief 
advantages of civil liberty. But if different ranks 
were acknowledged by law, a tendency would 
soon be discernible to favour those to whom the 
legislation was committed ; the laws, by a con- 
stant bias, would incline to the advantage of the 



378 OF THE ADMINISTRATION 

higher orders ; the foundation of equality of civil 
rights would be undermined by a gentle but un- 
ceasing current, and the superstructure would 
speedily fall to the ground. It is thus, that, in 
the early governments of modern Europe, the 
inferior classes were severely punished for slight 
transgressions against their superiors, while their 
personal security was guarded by very inadequate 
provisions ; and thus, that, till a later period, the 
clergy, who possessed unbounded influence over 
the government, were nearly exempted from pu- 
nishment even for the most flagitious crimes. 
Nor could the utmost wisdom of legislators, 
though it might guard against real oppression, 
prevent the recognition, in criminal statutes, of 
differences of rank, from being a constant source 
of popular discontent. The laws would appear, 
on a cursory view, to be unjust. Those, it would 
be said, whose education should have saved 
them from guilt, are punished less severely than 
the ignorant ; not only are the temptations of 
poverty disregarded, but they are held as aggra- 
vations of the crime. Viewed in this light, the 
distinctions of the law would appear partial to 
the rich and powerful, and the inferior orders 
would either be degraded or irritated by what 
they could scarcely fail to consider both as a 
stigma and oppression. But no such dangers are 
to be apprehended from entrusting the most am- 
ple powers to juries. No general principles, lia- 
ble to abuse or misrepresentation, would be es- 

2 



OF CRIMINAL LAW. 379 

tablished by their verdicts, but, guided by the 
particular circumstances of each case, they would 
have it in their power to substitute a real equali- 
ty of punishments, for one that is merely nomi- 
nal and illusive. 

It would be a farther, and very important ad- 
vantage of the enlargement of the rights of ju- 
ries, that it would entirely supersede the neces- 
sity of creating a power in the magistrate of re- 
mitting the punishment of crimes. This power 
can be justified only on the ground of the imper- 
fection of criminal law. As customs and sta- 
tutes must, from their own nature, apply very 
inaccurately to the cases which occur, many indi- 
viduals must be condemned by them to unmerit- 
ed suffering. The human mind revolts from 
the idea of inflicting these unjust punishments, 
merely from attention to general rules ; and in 
order to prevent this, a power is lodged in the 
magistrate of dispensing with the law, and of re- 
mitting, either in whole or in part, those penal- 
ties which it has denounced. In the present state 
of criminal law, such a power is, upon the whole, 
most salutary, but it is attended with many and 
great evils. 

It lodges a discretionary power where it is 
most liable to abuse, and opens a wide door to 
all those corruptions, against which the independ- 
ence of the judges, and the institution of juries, 
were intended to provide. It affords the means 
of escape to. criminals whose wealth may bribe a 



J80 OF THE ADMINISTRATION 

favourite, or whose influence may promote the 
views of the court ; it secures impunity to such 
as act illegally in support of the reigning faction 
in the state ; it gives occasion to private solici- 
tation, and, by inducing a suspicion that punish- 
ment may be averted by powerful connections, 
endangers the public confidence in the impartial 
administration of justice. At the same time, by 
affording hopes of impunity, even after convic- 
tion, it provides an additional, and what will ap- 
pear a very probable, chance of escape, thereby 
counteracting the benefit of example, and en- 
couraging to the commission of crimes.* 

Were the award of law just in all cases, there 
could no longer be any necessity for so danger- 
ous an interference of the executive power. The 
prerogative of pardoning could no longer be 
lodged in that magistrate who represents the na- 
tion, for the whole community has no right to 
disappoint the just revenge of the injured party, 

* The impossibility of proportioning punishments, by law, 
to all the various circumstances attending crimes, has most 
preposterously been adduced as an argument for denouncing 
death against trifling offences, and leaving it to the magis- 
trate to mitigate the penalty. Sir Samuel Romilly has shewn 
most distinctly, that it would be much safer to leave the con- 
sideration of the sentence entirely to the judge, who would 
act under a more obvious responsibility in awarding punish- 
ment, than in mitigating it. See his Observations on the Cri- 
minal Law of England. But wherever it is in the power of a 
judge, or of the executive magistrate, either to award or mi- 
tigate punishment, public liberty must be insecure. 



OF CRIMINAL LA^r. 331 

or to defraud him of that satisfaction and future 
security, to which, by the verdict of the jury, he 
was entitled. Nor could any individual, by par- 
doning a transgression against himself, be per- 
mitted to deprive the community of those bene- 
fits of example to which the commission of a 
crime gives a just claim, and which are some 
compensation for the general insecurity and 
alarm it has occasioned. While the punishment 
awarded is strictly conformable to the dictates of 
justice, remission of any part of it must be with- 
out excuse ; and if every sentence were put tit 
execution, all partiality would be prevented, and 
fewer hopes of impunity would remain to insti- 
gate to crimes. 

Of all situations for judging with fairness be- 
tween the criminal and the country, that of a ju- 
ror is perhaps the most favourable. The whole 
circumstances of the aggression being minutely 
related to him, he conceives the nature of the 
injury distinctly, and enters fully into the feel- 
ings of him, whose property, personal security, 
or character, has been violated. Being himself 
one of the community whose safety is endanger- 
ed by every crime, he feels that alarm which im- 
presses upon his mind the necessity of example : 
and, on the other hand, he has the culprit in his 
presence, and by this circumstance, is distinctly 
reminded of the pain and disgrace, which, in 
consequence of the verdict, he will be doomed 
to suffer. The same circumstances are no doubt 



382 OF THE ADMINISTRATION 

present to the judge, but his habits tend to im- 
press very strongly the necessity of example, and 
to obscure, if not to destroy, all fellow-feeling 
with the offender. Knowing, by experience, that 
almost all who are brought before him are worth- 
less in their characters, and that most of them 
are guilty of the crimes with which they are 
charged, he is apt to act under prepossessions 
unfavourable to the prisoner ; and, accustom- 
ed to pass sentence on numbers of his fellow- 
creatures, he avoids that minute consideration 
of the consequences which would frequently 
poison his own enjoyments. * From such ha- 
bits, jurors, chosen from the great body of the 
people, and exercising a function which rarely 
devolves upon them, are altogether free. Look- 
ing fully to all the circumstances of the case, 
neither neglecting that general security in which 
they are personally interested, nor averting their 
minds from the sufferings which await the cul- 
prit, they may be expected to pronounce sen- 
tences, which, without inflicting any unmerited 
punishment on the criminal, sufficiently avenge 
the sufferer and protect society. 



* " It has been observed," says Sir Samuel Romilly, " that 
" in the exercise of this judicial discretion, judges, soon after 
" their promotion, are generally inclined to great lenity : and 
" that their practical principles alter, or, as it is commonly 
* c expressed, they become more severe as they become more 
" habituated to investigate the details of human misery and 
" human depravity,"— Obs. on Crim. Law of England. 



OP CRIMINAL LAW. 383 

From sentences so pronounced there is no 
need of appeal ; of punishments so inflicted there 
is no need of mitigation ; and least of all should 
such prerogatives be lodged in the sovereign, 
who is exposed to private solicitation, and neces- 
sarily ignorant of the nature of the case. The 
recommendation of the jury, or the private re- 
presentations of the judge, are perhaps the only 
grounds on which pardons can justifiably proceed, 
and it would surely be better to confer that 
power directly, which is at present exercised, 
through the medium of the sovereign, without 
the same responsibility to public opinion, and 
without the same certainty of attaining the ends 
of justice. Instances have occurred in which 
pardons have been issued without any recom- 
mendation of the jury, and others in which they 
have been refused to their most earnest entrea- 
ties. In such cases, it must be difficult to con- 
vince the public of the rectitude with which the 
discretionary power of the magistrate has been 
exercised : for where no new circumstances have 
been brought to light, those who were present 
at the examination of the witnesses must be bet- 
ter judges of the amount of the guilt, than mini- 
sters who have no means of information but the 
notes of the judge. There will consequently be 
a suspicion of the influence of private solicitation 
very discreditable to the justice of the country $ 
and juries, though they cannot ensure the inflic- 
tion of punishment when it is merited, will at 
least take care ? though by a breach of their oaths 



384* OF THE ADMINISTRATION 

and of the law, that it shall not be inflicted where 
it is not deserved. Hence new probabilities of 
complete impunity, and new encouragements to 
crime. 



SECTION III. 

Of Criminal Statutes, 

Although the determination both of the fact 
and of the law, should, in ordinary cases, be left 
to juries, empowered to decide upon the whole 
import of the evidence, and even to fix the de- 
gree of punishment, it by no means follows, that 
criminal statutes are, in every instance, either 
prejudicial or unnecessary. Wherever there is a 
probability of the jury being impartial, while, at 
the same time, the natural and universal senti- 
ments of justice are accurate enough to deter- 
mine the award, all appeal to other authority is 
probably superfluous, and all attempts to fetter 
the judgment, by rules formed on hypothetical 
cases, are likely to impede, rather than promote, 
the ends proposed by punishment. But when 
views of justice alone are insufficient, when the 
more remote effects of coercion, whether on the 
criminal or the spectators, must be attended to, 
when the guilt lies entirely in the infraction of a 
positive enactment of the legislature, and, above 



OF CRIMINAL LAW* 385 

all, when there is reason to fear that a jury may 
be led away by partialities or prejudices, it be- 
comes requisite to guard by statute against the 
evils which might ensue. Perhaps such statutes 
may be reduced to three classes. 1st, Those 
which point out the legal modes of punishment ; 
2dly, Those which affix penalties to the disregard 
of public regulations founded solely on utility ; 
and, 3dly, Those intended to prevent injustice in 
the prosecution of crimes against the welfare or 
safety of the state. 

I. When the degree of punishment due to 
transgression has been determined by the natu- 
ral sentiments of justice, it remains to consider 
the mode in which, for the reformation of the of- 
fender, and the general good of society, that de- 
gree of punishment should be inflicted. In these 
respects, the various modes of coercion that have 
been employed by different nations merit very 
different degrees of approbation. 

Even in inflicting death, it is of consequence to 
choose that form of it which is best adapted to 
strike the imagination of the people, and to con- 
nect disgrace with punishment, without accus- 
toming the spectators to scenes of cruelty, or ex- 
posing the sufferer to severe or protracted pain. 

To whipping, and every other kind of bodily 
torment, there are such objections, that they 
ought to be entirely excluded from the catalogue 
of legal punishments. Bodily suffering may in- 
deed be accurately proportioned to the offence, 

VOL. i. 2 b 



386 OF THE ADMINISTRATION 

but this is its only recommendation. If inflicted 
privately, too much is left in the power of the 
magistrate or executioner, and the benefit of ex- 
ample is lost : if publicly, the spectators either 
become habituated to cruelty, or lose their indig- 
nation at the crime in the view of the punish- 
ment ; while the culprit, degraded and exposed, 
is almost of necessity driven to new r and more 
daring offences. 

Pillory, also, by ruining the character and de- 
stroying all sense of shame, corrupts, in place of 
reforming, the criminal ; and, though it may be 
unexceptionable in the view of public example, 
it is attended with the disadvantage of allowing 
the culprit to be maltreated by his private ene- 
mies, and thus of exposing him to a greater pu- 
nishment than that which was in the contempla- 
tion of his judges* 

Banishment, which merely withdraws the pro- 
tection of those laws against which the offender 
has declared his enmity, seems the appropriate 
punishment of state crimes ; but when extend- 
ed to other offences* it produces little effect by 
the force of example, and though it may give 
the criminal some chance of reformation by re- 
moving him from his associates, it is more severe 
upon him in proportion as he is less corrupted, 
and therefore more warmly attached to his coun- 
try and his friends. All the advantages of ba- 
nishment, however, are sacrificed in that mode 
of it known under the name of transportation. 



OF CRIMINAL LAW, 387 

The offender is sent to a society where his mo- 
rals may be vitiated by example, but can never 
be improved ; where the social propensities force 
him to connect himself with many far advanced 
in the career of guilt ; and where he is some- 
times sentenced to so long a residence, that, be- 
fore his return, all affection for him, and even all 
remembrance of his - person, though not of his 
disgrace, must be effaced from the minds of his 
relations. 

Of all descriptions of punishment, confinement 
in a well-regulated bridewell is probably the best. 
It can be accurately proportioned to every trans- 
gression, for it may be varied from one day to 
many years ; and in the most flagitious crimes, part 
of the term may consist of solitary confinement. 
Nor is there any punishment which affords so 
strong a probability of the reformation of offend- 
ers. Daily labour, regularly continued for months 
or years, is likely to produce habits of industry, 
and thus to counteract that propensity to idleness 
which is the most fruitful source of crimes ; the 
fear of shame is not destroyed by public expo- 
sure ; and the interruption of vicious habits and 
vicious connections, joined, in more flagrant ca- 
ses, to the reflections suggested by solitude, may 
allow virtuous resolutions to take root in the 
heart. It is true, that no striking example is 
held out to the public : but severe and constant 
labour, being perhaps the most formidable evil 



38$ OF THE ADMINISTRATION 

in the estimation of the idle and profligate, the 
certainty of its overtaking their crimes may deter 
them more effectually than a cruel punishment, 
which, by dissipation, they would seek to drive 
from their thoughts, or, by a false courage, to 
brave and contemn. But, in order that a bride- 
well may produce any salutary effects, its regula- 
tions must be conceived with wisdom, and exe- 
cuted with strictness ; if ill regulated, it affords 
an opportunity for corruption, and may justly be 
considered as a seminary of vi^e.* 

* The reader is referred, for a fall and judicious examina- 
tion of the various punishments inflicted on criminals, to Theo- 
rie des Peines et des Recompenses par Bentham, redigee par Du- 
mont. 

The Panopticon, projected by Mr Bentham (see Traites de 
Legislation, torn, iii), while it provides in a very ingenious 
manner for the inspection of prisoners by the eye, neglects the 
more important inspection, so to speak, exercised by the ear. 
Prisoners corrupt each other, not by their actions, but by 
their conversation ; and the panopticon is no check "on that con- 
versation, unless it is made a house of solitary confinement. 

In a well-contrived bridewell, there ought to be a few work- 
ing cells for prisoners condemned to the strictest solitude, al- 
though this punishment, even for aggravated crimes, should 
be of short duration : there ought also to be cells for a miti- 
gated solitude, from which, without the privilege of conver- 
sing with them, other prisoners might be seen at work; but 
the greater number of convicts ought to be employed in a large 
work-room, under inspectors, who, by constantly moving from 
one part of the room to another, might interrupt and check 
improper conversation. The central tower of the panopticon 
would be extremely useful for the superintendance of these 
inspectors. 



OF CRIMINAL LAW. 389 

These very cursory remarks on a few of the most 
common modes of inflicting punishment, may 
prove, that the preference of one over others 
does not depend on any sentiment, which, being 
natural to all mankind, might be safely relied 
upon by jurors. In order to ascertain the real 
tendency of various kinds of coercion much rea- 
soning and investigation must be employed, just 
inferences must be drawn from the principles of 
human nature, and when the information derived 
from this source is defective, experiments must 
be made, and their results accurately compared. 
The whole is an exercise of intellect proceed- 
ing on former experience ; consequently the con- 
clusions of different enquirers will vary accord- 
ing to their respective abilities and knowledge. 
On the choice of punishments, however, much of 
the public benefit of example, and the whole of 
the chance of reforming the criminal, must de- 
pend. An error of judgment may here be attend- 
ed with the worst consequences to the commu- 
nity, and as the views to be compared are nei- 
ther very obvious, nor at all connected with the 
business of ordinary life, it is very improbable 
that jurors chosen promiscuously from the people 
will form a sound opinion. 

In most countries, the legal punishments have 
been fixed by consuetudinary law. Those modes 

It was on these principles, that the late Mr Stark, of Edin- 
burgh, was engaged in designing a bridewell for the county 
of Renfrew, at the time of his death. 



290 OF THE ADMINISTRATION 

of coercion, which were employed in remote and 
comparatively rude and ignorant periods of sor 
ciety, are continued without enquiry into their 
merits, and without alteration even after their 
defects are very generally recognised. Because 
our ancestors imprisoned felons where they were 
exposed to idleness and the contagion. of bad as- 
sociates ; because they exhibited tortures shock- 
ing to humanity ; inflicted disgraceful punish- 
ments which cut off all return to virtue ; and 
sent their criminals from one town or country to 
another, as if they were to be improved by change 
of place ; we continue to follow the same rou- 
tine, persevering, in spite of reason and experi- 
ence, in modes of coercion equally cruel and in- 
effectual. Even were it allowed that no progress 
has been made in moral and political knowledge, 
it can scarcely be denied that, according to chan- 
ges in manners and opinions, the mode of pu- 
nishment should also be changed ; nor can it 
reasonably be pretended that our ancestors, with 
whatever reverence we regard them, were better 
judges of what would be expedient under unfore- 
seen circumstances, than we, who, being hi a si- 
tuation to discern all the motives of our contem- 
poraries, can estimate their relative influence on 
the will. 

If, then, the mode of coercion ought neither to 
be fixed by mere custom, nor by juries who must 
frequently be deficient in previous knowledge and 
in talents, nor by judges, who, on this subject, may 



OF CRIMI NAL LAW. 39 I 

be as ignorant as jurors; it can be determined only 
by the legislature, which represents the combined 
will and combined wisdom of the nation. Being 
unconnected with the natural sentiments of justice, 
but dependent on views of expediency in which 
all the members of society are nearly interested, 
the preference of particular modes of punishment 
is properly the subject of statute, though the ap- 
plication of the degree to each offence, and even 
the choice among those kinds of coercion which 
have been legalized, ought to be left unfettered 
to the discretion of the jury. This class of sta- 
tutes could neither be tedious nor intricate. What- 
ever preparations might be necessary to enable 
the legislature to frame them, they must consist 
of a very few enactments scarcely susceptible of 
misinterpretation. But though such laws would 
be simple, they must require frequent revisal. 
The manners and opinions of mankind are in a 
continual state of change, and unless the legal 
punishments undergo correspondent alterations, 
they will soon cease, in the actual state of socie- 
ty, to be adapted to the reformation of the cri- 
minal, or the suppression of crimes. 

II. It has already been remarked, that many 
regulations are requisite in society, which are 
not founded on views of justice. Many rules 
are laid down, many rights restricted, many du- 
ties created, by the will of the legislature. Such 
regulations, being founded, not on equity, but on 
utility, with regard to which there is always room 



$g% OF THE ADMINISTRATION 

for difference of opinion, derive their validity 
principally, if not entirely, from their enactment, 
and are very imperfectly supported by the natu- 
ral sentiments of mankind. 

It is no doubt true, that it is the duty of every 
citizen to yield a ready obedience to the laws of 
his country, and that every violation of this duty 
is a moral offence. He who wilfully refuses to 
acquiesce in those measures which a majority of 
his countrymen, or that legislature which repre- 
sents the national will, have adopted, while such 
measures are not inconsistent with the paramount 
laws of justice, has broken the necessary bonds 
of society, and might justly be excluded from 
the advantages of the social combination, for 
which he has refused to pay the equivalent. 
But in this view, all infractions of positive law 
are equally culpable ; the most trifling regula- 
tion of police, being the declaration of the gene- 
ral will, would be guarded by the same penalties, 
with the most essential duties towards the state ; 
and either the former would be enforced by pu- 
nishments revolting to the common feelings of 
mankind, or the latter would be left without any 
effectual sanction. In ordinary cases, a jury 
would be lenient with regard to offences of which 
they did not fully understand the evil consequen- 
ces, and occasionally, from an opposite misappre- 
hension, they might inflict severe penalties on 
actions of very trivial importance. 



OF CRIMINAL LAW. 393 

In determining the degree of punishment 
which ought to attend the violation of an arti- 
ficial regulation of society, it is proper to consi- 
der both the importance of the duty created, 
and the temptation to disregard it. If it tend 
but in a slight degree to the general welfare, it 
ought not to be enforced to the great and mani- 
fest inconvenience of individuals ; and therefore 
the penalty ought to be such as may leave some 
degree of choice to the citizens. But if it be 
very essential to the general prosperity, no such 
choice can be allowed, and therefore the penal- 
ty must be of a nature to ensure its regular ob- 
servance. In the same manner, if it create a du- 
ty neither unpleasant nor disadvantageous to the 
individual, a slight sanction will be sufficient; 
but if it occasion considerable trouble, fatigue, 
or expense, its infraction must, by higher penal- 
ties, be rendered more inconvenient or expensive 
than its observance. 

Of these circumstances the legislature is the 
proper judge. Those by whom the law is en- 
acted are best able to determine how far it is inv 
portant to the general welfare, and their previous 
enquiries will lead them to estimate the tempta- 
tions, from indolence or avarice, to disregard the 
enactment. Were the penalty to be awarded by 
the jury, it would be necessary to prove to them 
the beneficial consequences of the law, from 
which arises the propriety of enforcing it. This 
being evidently a matter of speculation, depend- 



394- OF THE ADMINISTRATION 

ing not on natural sentiments, but on information 
and reasoning, very opposite views might be en- 
tertained by different juries, and, to the utter sub- 
version of every appearance of justice, the pe- 
nalty for disobeying the law might, in exactly si- 
milar cases, be sometimes merely nominal, at 
other times extremely severe. Nothing, indeed, 
could be more contrary to all principles of go- 
vernment, than the committing of such a power 
to a jury. It would be to submit the propriety 
of a legislative measure, after it had been sanc- 
tioned by the highest authority in the state, to 
the judgment of twelve men of ordinary infor- 
mation and ordinary abilities ; and thus to give 
to a very trifling portion of the people, an effec- 
tive control over the resolutions of that assembly 
which represents the conjoined w r isdom and ex- 
perience of the nation. Laws, th erefore, which are 
founded solely on utility, which prohibit what is 
in itself innocent, or prescribe what is not natu- 
rally a duty, while they explain the regulation 
which, for the general benefit, is to be enforced, 
ought, at the same time, to specify the penalty 
attached to its non-observance ; and the province 
of the jury is merely to enquire whether the law 
has been infringed, and to order the infliction of 
that punishment which has been denounced by 
the legislature. 

So obvious, indeed, is the necessity of a penal 
clause in all such statutes, that perhaps no in- 
stance of its omission has ever occurred. Until 



OF CRIMINAL LAW* $95 

the law is promulgated, and the penalty specified, 
none of the citizens can be informed either of 
the existence of the obligation, or of the conse- 
quences which will attend their disregard of it. 
Accordingly, it is only in this class of offences, 
as has already been remarked, that what are call- 
ed ex post facto laws are unjust. When penal sta- 
tutes have been promulgated, the obligation to 
conform to them, or to submit to the penalty, 
follows from the first principles of government. 
Those who derive so many benefits from the so- 
cial combination must obey the orders of a ma- 
jority of the nation, or of that legislature to which 
the powers of the majority are entrusted, because 
otherwise no social combination could exist. * 
But all that is incumbent is either to observe the 
regulation, or to submit to the penalty : a choice 
is left by the statute, and it is only he who at- 
tempts to evade both alternatives who is guilty 
of a crime. " In relation to those laws," says 
Sir William Blackstone, " which enjoin only po- 
¥ sitlve duties, and forbid only such things as are 
" not mala in se, but mala prohibita merely, with- 
" out any intermixture of moral guilt, annexing 
" a penalty to non-compliance ; here I appre- 
u hend conscience is no farther concerned, than 
" directing a submission to the penalty, in case 
" of our breach of those laws." " In these cases 
" the alternative is offered to every man ; ei- 

* Book I. Chap. I. Sec. IV. 



$9$ OF THE ADMINISTRATION 

« ther abstain from this, or submit to such a 
" penalty ; and his conscience will be clear which 
" ever side of the alternative he thinks proper to 
" embrace."* 

III. Gffences against the government are at- 
tended with peculiar circumstances, which would 
render highly dangerous, if extended to them, 
that discretionary power, which, with regard to 
other crimes, may safely be entrusted to juries. 
Many of the inferior state crimes, such as un- 
premeditated riots, contempt of legal authority, 
or marked disrespect for public functionaries, 
occasion little indignation, but must be repress- 
ed, because they impede the public service, dis- 
turb the peace of society, and, if allowed to pro- 
ceed, will probably lead to greater enormities. 
Such offences properly belong to the last class, 
since they are punished chiefly from views of 
utility. A penalty must be annexed to them 
sufficient to prevent public disorder, and the 
proper degree of penalty, not being discover- 
able by sentiment, but by experience, ought to 
be fixed by statute, t 

. * Blackstone's Commentaries, Introd. See. II. 

•J* Of all classes of offences, state crimes hold out the strong- 
est temptations to a corrupt or factious judge to inflict exces- 
sive punishments. The penalty, therefore, ought not to be 
left to his discretion, but fixed, in as far as possible, by law. 
Thus, public libel might be divided into several classes, to 
each of which a specific penalty was attached, and the verdict 
of the jury might determine to which class the libel in ques- 



OF CRIMINAL LAW, 39/ 

In the higher state crimes, the same necessity 
arises from very opposite considerations. Here 
there is no want of interest in the spectators, no 
deficiency in the indignation which they feel at 
any attempt to betray, to pillage, or to enslave 
their country. On the contrary, it is to be feared 
that this indignation will usually be too strong \ 
that, in its desire of atonement, it will be apt to 
prejudge the accused ; and that, in estimating 
the crime, it will far exceed the limits of justice* 
As the offence is levelled directly against the 
community, each citizen is a party ; his peace, 
prosperity, and happiness, are identified with 
those of the state; and when all that he holds 
most dear has been invaded, it is in vain to ex- 
pect him to repress his desire of vengeance. To 
put a criminal on his trial before such. a jury, 
without affording him every protection which he 
might derive from statutes framed in a more just 
and merciful mood, would be to deliver him 
into the hands of his enraged and implacable 
enemies ; it would be to punish him, not accord- 
ing to the indignation of the unconcerned spec- 
tator, but according to the resentment of the 
man whom he has injured. 

State crimes, too, are most frequently commit- 
ted, and suspected, when the country is divided 
in opinion, and torn by opposing factions. At 

tlon belonged. It may not hp entirely safe to commit this 
power to a jury j but it is much more dangerous to entrust it 
to a judge. 



398 OF THE ADMINISTRATION 

such a time,, no unprejudiced jury can possibly 
be found. The same action appears harmless, 
or even laudable, to one, which strikes another 
with horror ; and the honourable acquittal, the 
disgrace* or the death of the accused, will depend 
entirely on the political principles of those who 
may happen to try the cause. At best, it will 
be determined by accident, but much oftener by 
the activity displayed by the several factions, 
and the influence exerted by them in the no- 
mination of jurors. The conviction or acquittal 
will, in a great measure, be independent of real 
guilt, and it may be feared that to procure a 
triumph to a party, or throw discredit on its op- 
ponents, even those who are known to be inno- 
cent may sometimes be condemned. Against 
such evils, consuetudinary law could afford but a 
feeble protection. While precedent was opposed 
to precedent, and analogy overthrew analogy, no 
faction could be at a loss for arguments to cloak 
oppression, and impose on those partizans whose 
passions were already afloat. Positive statutes, 
in such cases, seem indispensable, and, that they 
may be effectual in shielding innocence and 
reaching powerful or popular transgressors, such 
statutes must be precise in their enactments. 

The acts which constitute state crimes, and 
their various degrees of criminality, must be spe- 
cified, that mere imprudence may not be con- 
strued into guilt, while crimes, which attack the 
public peace, prosperity, or liberty, are passed 



OF CRIMINAL LAW. 399 

over as innocent, or rewarded as meritorious. 
To describe every possible offence against the 
community is indeed impracticable ; but all those 
which tend materially to the public detriment 
may be learned from history, and should the ca- 
talogue be incomplete, occasional impunity is less 
dangerous than general insecurity and frequent 
oppression. 

The nature of the proof to be admitted, and 
even the degree of proof requisite for conviction, 
must also be particularized, that the innocent, 
when brought before prejudiced juries and cor- 
rupt judges, may have some prospect of escape. 
Party feelings are apt to blind the judgment even 
of very estimable men ; to make them credit eve- 
ry calumny against their opponents, and in parti- 
cular to bias their opinions in all questions im- 
portant to the credit or influence of their factions. 
When it is farther considered, that jurors must 
be appointed by some public officer, who proba- 
bly will return men of his own way of thinking, 
and that, in factious times, even the judges are 
usually infected with the prevailing spirit, it will 
be acknowledged, that, unless the rules of proof 
are strictly defined, the most slender presump- 
tions will be held as incontestible demonstrations ; 
the testimony of the most profligate, even of con- 
victed felons, will outweigh that of respectable 
citizens ; and, before he is put on his trial, the 
guilt or innocence of the accused will be deter- 



400 OF THE ADMINISTRATION 

mined in the minds of those who are the arbiters 
of his fate. 

Lastly, the precise punishment of each degree 
of state delinquency should, in as far as possible, 
be fixed by statute. To leave this to a jury would 
be to render nugatory every other precaution ; 
and to confide it to the judge would be to pros- 
trate the liberties of the people at the foot of 
the throne. Trivial offences might sometimes be 
punished as the greatest atrocities, and crimes di- 
rected against public liberty might occasionally 
meet with indulgence or reward. It is, no doubt, 
true, that from strict criminal statutes, injustice 
to individuals must sometimes result. No human 
wisdom can guard against this consequence of 
rules formed from general experience, and gene- 
ral reasonings, independently of the nicer discri- 
minations of the individual case ; nor can it be 
denied that the spirit of party will sometimes 
commit injustice under cover of the wisest pre- 
cautions of the law. But this evil does not seem 
to admit of remedy ; for, to lodge a dispensing 
power in any magistrate, as a protection against 
occasional injustice, would be to screen those 
offences which are by far the most dangerous to 
the state. 

The occasional hardships inseparable from the 
observance of general rules, however much to be 
deplored, may be looked upon as a cheap pur- 
chase of an exemption from frequent oppression 
and constant insecurity. Had the statutes re- 



OF CRIMINAL LAW. 401 

specting state crimes been sufficiently precise, 
crowds of victims could not have been immola- 
ted in France without being accused of any spe- 
cific or intelligible offence ; the innocent could 
not have been punished in Ireland, on the testi- 
mony of profligate witnesses ; nor could men of 
liberal education, and irreproachable lives, have 
been sent from Scotland, on account of mere im- 
prudence, to associate with only the most deba- 
sed of mankind. 



END OF VOLUME FIRST. 



Edinburgh: 
Printed by James Ballantyne and Co. 



